Pandemic Advice for Massachusetts Employers
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The pandemic is not over, though many of the legal measures that were adopted to address the pandemic are (pandemic unemployment, COVID related sick time for employees, financial relief for business owners).
In 2022, employers face new challenges. Can you require employees to be vaccinated? What are your obligations for the safety of your employees? How should you manage a request to work remotely if someone does not feel comfortable coming back to work in person? Are there new legal issues you should be aware of if you do allow employees to continue to work remotely? Business owners also have many questions about the employment law implications of the COVID-19 emergency. Below is a summary of the CDC guidance for businesses and employers, as well as answers to some frequently asked questions about managing the situation in the workplace. You can also review our updated legal resource page for COVID in 2022. CDC/OSHA Recommendations for EmployersThe Centers for Disease Control and Prevention ("CDC") initially issued specific guidance for businesses and employers in Massachusetts. The CDC is no longer updating employer guidance, but the Occupational Safety and Health Administration ("OSHA") has enacted emergency temporary regulations for covered employers (generally, employers with over 100 employees and healthcare workers). OSHA has also issued non-binding guidance for employers who are not covered under the emergency regulation. The full guidance is available here, and includes the following:
Keep in mind these recommendations continue to evolve. If your business cannot operate remotely, it is a good idea to check the OSHA guidance page periodically for updates. |
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Employer Responsibility for Sick Time and Leave
The Families First Coronavirus Relief Act ("FFCRA") provided important protections for workers who needed time off due to illness or quarantine related to COVID-19. The mandatory leave provisions expired at the end of 2020, but the federal tax credits available to employers who choose to provide the emergency sick leave were extended several times. Massachusetts enacted extended COVID paid sick time in 2021, which has also expired.
What remains as the employer's obligations to an employee who becomes ill with COVID are a combination of state sick time law, and state or federal family medical leave laws, depending on the size of the employer.
Massachusetts Earned Sick Time Law: All employers must allow workers to accrue sick time at a rate of one hour for every 30 hours worked, up to a total of 40 hours. Employers with 11 or more part time or full time employees must pay for this sick time. Smaller employers do not have to pay, but must allow for the time off without penalty.
Massachusetts Paid Family and Medical Leave ("PFML"): Employees who have contracted COVID, or who are caring for a family member who has contracted COVID, may also qualify for paid medical leave under the PFMLA. If your (or your family member's) illness has caused you to miss work three or more consecutive calendar days, and you have the proper certification from your physician, you may apply for benefits under the PFML.
It is important to understand that these are protected leaves. That means that when an employee returns to work, they cannot be subject to retaliation for taking the leave.
What remains as the employer's obligations to an employee who becomes ill with COVID are a combination of state sick time law, and state or federal family medical leave laws, depending on the size of the employer.
Massachusetts Earned Sick Time Law: All employers must allow workers to accrue sick time at a rate of one hour for every 30 hours worked, up to a total of 40 hours. Employers with 11 or more part time or full time employees must pay for this sick time. Smaller employers do not have to pay, but must allow for the time off without penalty.
Massachusetts Paid Family and Medical Leave ("PFML"): Employees who have contracted COVID, or who are caring for a family member who has contracted COVID, may also qualify for paid medical leave under the PFMLA. If your (or your family member's) illness has caused you to miss work three or more consecutive calendar days, and you have the proper certification from your physician, you may apply for benefits under the PFML.
It is important to understand that these are protected leaves. That means that when an employee returns to work, they cannot be subject to retaliation for taking the leave.
What Questions Can You Ask Employees About Their Health?
Ordinarily employers do not inquire about medical details, other than to get medical confirmation that an employee is medically cleared to return to work after a leave. in the current situation, however, you will want to know which employees are exhibiting COVID-19 symptoms in order to manage exposure in your workplace.
Employers need to be mindful that overly broad or intrusive medical inquiries can violate the Americans with Disabilities Act ("ADA"). There are some exceptions, however, if an employer is following local, state or federal guidance mandating or recommending screening questions.
Employers should also be mindful of employee privacy under both the ADA and Massachusetts privacy laws. If an employee discloses an exposure to COVID-19 or associated symptoms, that information should not be shared except with those who need to know. You can obtain consent from your employees to share positive test or exposure information, but should make sure they are aware that the consent is voluntary, that there will be no repercussions if they do not give it, and that they can revoke the consent at any time.
Employers need to be mindful that overly broad or intrusive medical inquiries can violate the Americans with Disabilities Act ("ADA"). There are some exceptions, however, if an employer is following local, state or federal guidance mandating or recommending screening questions.
Employers should also be mindful of employee privacy under both the ADA and Massachusetts privacy laws. If an employee discloses an exposure to COVID-19 or associated symptoms, that information should not be shared except with those who need to know. You can obtain consent from your employees to share positive test or exposure information, but should make sure they are aware that the consent is voluntary, that there will be no repercussions if they do not give it, and that they can revoke the consent at any time.
Vaccination Requirements and Employment
As employers struggle with how to maintain operations and keep their staff and customers safe during the current Omicron surge, questions frequently arise about whether they can require their employees to show proof of vaccination as a condition of employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
What is an Employer's Liability if an Employee Catches COVID-19 on the Job?
Generally, injury or illness caused in the workplace is covered by workers compensation. This means an employee is entitled to income replacement and payment of medical bills from your workers compensation insurer. Except in extraordinary circumstances, the employee cannot seek further compensation directly from you.
It is unclear if a workplace COVID-19 exposure would count as a workplace injury. For contagious illness to be considered a workplace injury, the work environment generally must present a particular risk.
For example, health care workers who contract a contagious disease while treating patients are likely to be covered. An employee who traveled to an affected country for work and contracted the virus would probably also be covered. As community spread of COVID-19 grows, it may be more and more difficult to pinpoint the workplace as the site of any particular exposure.
The workers compensation system is intended to be the exclusive remedy for workplace injury or illness. Employers should know that there is an exception if the employer engages in "willful or wanton" conduct that endangers employees. Under those circumstances, the employer could be liable to cover the costs that would otherwise be paid by the insurance company and pay a penalty.
"Willful and wanton" is generally a high bar. It does not include making a mistake or failing to recognize symptoms in an employee. It might include requiring a known COVID positive employee to continue to come to work.
It is unclear if a workplace COVID-19 exposure would count as a workplace injury. For contagious illness to be considered a workplace injury, the work environment generally must present a particular risk.
For example, health care workers who contract a contagious disease while treating patients are likely to be covered. An employee who traveled to an affected country for work and contracted the virus would probably also be covered. As community spread of COVID-19 grows, it may be more and more difficult to pinpoint the workplace as the site of any particular exposure.
The workers compensation system is intended to be the exclusive remedy for workplace injury or illness. Employers should know that there is an exception if the employer engages in "willful or wanton" conduct that endangers employees. Under those circumstances, the employer could be liable to cover the costs that would otherwise be paid by the insurance company and pay a penalty.
"Willful and wanton" is generally a high bar. It does not include making a mistake or failing to recognize symptoms in an employee. It might include requiring a known COVID positive employee to continue to come to work.
Conclusion: Employer Best Practices During the Pandemic
First and foremost, consider what is practical in your business that you can do to limit everyone's exposure. If you have people in roles that can effectively work remotely, this will help limit exposure. If people must be physically in the workplace, you can limit close contact and require that everyone wash their hands regularly during the work day.
If any employee reports that they or a family member has tested positive, make sure they stay home for a quarantine period. You may consider offering additional paid sick time beyond what the law requires to discourage people from coming to work when they may be contagious.
Whatever systems you put in place, apply them equally.
If any employee reports that they or a family member has tested positive, make sure they stay home for a quarantine period. You may consider offering additional paid sick time beyond what the law requires to discourage people from coming to work when they may be contagious.
Whatever systems you put in place, apply them equally.
How We Can Help
We can help answer your specific questions about managing the workplace in a pandemic. We routinely conduct consultations and meetings by phone or video-conference. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
