MASSACHUSETTS:
Important Changes to Unemployment Benefits
The Massachusetts Department of Unemployment Assistance (“DUA”) has enacted emergency regulations in response to the COVID-19 crisis, in order to make it easier for affected workers to apply for and obtain unemployment benefits. In addition, they permit DUA to excuse missed deadlines during the processing of a claim, such as responding to fact finding questionnaires and requesting an appeal, if the reason for failing to meet the deadline is due to COVID-19. The regulations also permit DUA to grant employer requests for extensions for filing quarterly wage reports and paying contributions. For more information, see: https://www.mass.gov/info-details/massachusetts-covid-19-unemployment-information
Expanded Benefits:
Employees have a right to apply for unemployment insurance benefits if they are laid off or fired or if they are partially unemployed (when an employee’s hours or earnings have been reduced by more than one-third). Most employees who are out of work due to COVID-19 should be eligible for unemployment insurance benefits. There is no waiting period for persons filing a claim for unemployment benefits where they have been separated from employment due to COVID-19. Employees will be paid for the first week if their claim was filed on or after March 10th. Self-employed individuals and independent contractors may also be eligible for unemployment benefits. Contact the Division of Unemployment Assistance at (617) 626-6800 or visit their website for more information or to apply for benefits.
Work Search Requirements:
The regulations greatly reduce the work search requirements for all claimants who are unemployed due to COVID-19. (Due to a layoff, furlough, or quarantine, even a self-imposed quarantine.) The claimant must only be “capable of, available, and actively seeking” work that is suitable for them. If a claimant is quarantined, self-quarantined due to a reasonable fear of exposure, or is caring for a family member who is sick, or a child who is at home, the claimant not need to accept work until those conditions resolve.
Standby:
Workers who are temporarily unemployed due to lack of work because of COVID 19 and expect to return to work will be eligible for unemployment benefits. They will be considered unemployed due to lack of work regardless of whether they are laid off, or furloughed, or if their workplace is fully or partially shut down temporarily. Under the Emergency Regulations, individuals in such situations are considered to be in “Standby Status.”
Standby workers must remain in contact with their employers during the shutdown and must be available for any work their employer may have for them that they are able to do. The DUA will ask employers to verify the return-to-work date, and if employers fail to respond, standby status will be assigned for four weeks. (Thus, for the four-week presumption, the employer need not even respond that the claimant is on standby). Employers may request, however, that the standby status be up to eight weeks, and, if necessary, DUA can extend standby status for longer than eight weeks.
Significantly, according to the FAQs issued by the Attorney General’s office (https://www.mass.gov/service-details/frequently-asked-questions-about-covid-19-employee-rights-and-employer-obligations) employees who are temporarily laid off or furloughed, and thus are on Standby Status, are entitled to a payout of accrued wages and vacation time on the date of the layoff.
Standby status is meant to help both employers and their employees. Employers maintain contact with their employees during the period of unemployment and have experienced employees ready to return when work becomes available again. Employees out of work because of COVID-19 will be relieved of traditional work search requirements and need only take reasonable measures to maintain contact with their employer, and to be available for hours offered by the employer.
Furlough:
Unlike a layoff, which is generally a termination of employment, a furlough is a temporary, unpaid leave. If an employer furloughs employees because of COVID-19, the employees will be eligible for unemployment benefits and considered to be in “standby Status” under the Emergency Regulations.
The WorkShare Program:
Employers can use the WorkShare program as an alternative to a furlough or layoff. Employers can divide available work between affected employees instead of laying off or furloughing workers. Employees are still able to receive part of their unemployment insurance benefits while working reduced hours and being paid for those hours by their employer.
Wage and Hour Developments:
The Fair Labor Division of the Office of the Massachusetts Attorney General has issued a series of Frequently Asked Questions (“FAQs”) relating to COVID-19 for employers and employees. See: https://www.mass.gov/service-details/frequently-asked-questions-about-covid-19-employee-rights-and-employer-obligations.
Massachusetts Earned Sick Time:
Employers are encouraged to allow employees to use earned sick time (and other applicable leave) if an employee is required to stay home because the employee or a family member has been exposed to COVID-19, is self-quarantining, or is uncomfortable with a work assignment due to COVID-19. (It is important to note, according to the FAQs employees may not be required to use their sick time before applying for unemployment).
Payment of Wages:
Certain EAP employees (meaning that the employee qualifies as exempt from overtime as a bona fide Executive, Administrative, or Professional employee under Massachusetts and federal law) must be paid their full salary when they have worked any part of a work week. This is broadly interpreted, and working would include checking emails. If the employer closes for an entire week no pay is required provided the employee has not performed ANY work during that week.
Most hourly employees do not have to be paid when they do not work. They can apply for unemployment.
Helpful Links:
https://www.mass.gov/info-details/massachusetts-covid-19-unemployment-information
Federal Law: The Families First Coronavirus Response Act (FFCRA),
The Families First Coronavirus Response Act (FFCRA), went into effect on April 1, 2020. The Department of Labor (DOL) has issued a Fact Sheet for Employers and a mandatory notice, which certain employers will be required to post or distribute. This Client Alert summarizes the key leave provisions.
Emergency Leave:
The FFCRA provides up to 12 weeks of public health emergency leave to eligible employees who are unable to work because they must care for their child whose school or childcare center is closed or whose childcare provider is unavailable due to COVID-19. The first ten days of such leave may be unpaid but the remaining days must be paid. An employee may elect, but is not required to, use other types of paid leave during the ten-day waiting period that may be unpaid under the FFCRA.
Emergence Sick Leave:
The FFCRA provides up to 80 hours of emergency paid sick leave to eligible full-time employees who are unable to work for reasons related to COVID-19. (Part-time employees are also entitled to emergency paid sick leave, based on the average number of work hours in a two-week period.) An employer may not require an employee to use other paid leave before the employee uses emergency paid sick leave under the FFCRA. In addition, an employer may not subtract paid sick leave granted to an employee before April 1 from the 80 hours of paid leave required by the EPSLA.
Both the FFCRA’s emergency leave and emergency paid sick leave provisions apply to most employers with fewer than 500 employees. This includes full-time employees, part-time employees, employees on leave, and temporary employees.
Employers with less than 50 employees may qualify for an exemption in limited circumstances. (Specific exceptions also apply to some employers that employ health care providers or emergency responders who may elect to exclude such workers from eligibility for this leave.)
Expanded Paid Family and Medical Leave:
A covered employer must provide to employees whom it has employed for at least 30 days up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Rate of Pay:
How much employees will be paid while taking paid leave under the FFCRA depends on their reason for taking leave. See the FRRCA mandated Employee Rights notice in which the DOL summarizes the calculations.
Model Notice:
The DOL has also released its notice of FFCRA requirements, which all covered employers are required to post. According to the DOL, employers may satisfy the posting requirement by posting the notice in a conspicuous place in the workplace, emailing or direct mailing it to employees, or posting it on an employee information internal or external website.
The following helpful documents were issued from the U.S. Department of Labor:
In addition, you can check the Wage and Hour Division's website or sign up for Key News Alerts to ensure that you remain current with all notice requirement