News + Insights from the Legal Team at Zalkind Duncan & Bernstein

CORONAVIRUS – What Protections do State and Federal Leave Laws Provide?

person-holding-thermometer-3873171-scaledOn March 10, Governor Charlie Baker declared a state of emergency in Massachusetts to combat the ongoing threat posed by COVID-19.  As of this writing, Massachusetts had 108 cases confirmed, and experts warn that the virus will likely continue to spread.  What do our state and federal leave laws provide for employees who contract COVID-19, or who have family members who contract COVID-19? 

First, and foremost, Massachusetts guarantees earned sick time to the vast majority of employees.  Workers earn and may use up to 40 hours of job-protected sick time per year.  That’s roughly five days of leave.  And the law applies even to part-time workers: workers earn at least one hour of sick leave for every 30 hours worked.  Workers can use that earned time to care for themselves or a “child, spouse, parent, or spouse’s parent.”  Employers with 11 or more employees must pay employees who take that sick time.  Small businesses that employ fewer than 11 employees must provide the sick time but are not obligated to compensate employees who use sick time.  To utilize sick time, an employee must provide an employer with some notice – employees must make a “good faith” effort to notify their employers in advance of any time taken.  In most circumstances, employers cannot insist on specific documentation; the law only allows employers to request additional medical or other documentation from an employee who uses 24 consecutive hours – or three days – of earned sick time.  

The law, however, has one major gap:  It does not apply to people who are not “employees.”  That includes the thousands of workers classified as independent contractors, gig workers, and freelancers.  Those workers are left without recourse if illness prevents them from responding to a service request, covering a shift, or meeting a deadline.  The law also has some limited exceptions for certain employees, including federal employees and student workers.  

For those needing more time away from work, the federal Family Medical Leave Act guarantees many employees up to 12 weeks away from work to care for themselves, or a spouse, child, or parent who has a serious health condition.  Unfortunately, the law does not require a company to pay the worker.  However, the company must preserve her job:  When she returns to work, she must be employed in the same or a nearly identical job.  The law has two major limitations:  It only applies to employers with 50 or more employees (with the exception of public agencies and schools, which must comply regardless of how many people they employ).  And as with paid sick leave in Massachusetts, it does not extend to those with alternative work arrangements, like gig workers, independent contractors, and freelancers.  There is an open question as to whether medically-recommended quarantine qualifies as a “serious health condition” under the law, specifically where someone is not exhibiting symptoms.  Regulations state that “serious health condition[s] includes health problems that “incapacitate you or your family member for more than three consecutive days and require ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication).”  A recommended quarantine would seem to meet the incapacitation requirementand if the quarantine is imposed by a doctor there is a good argument that it would qualify as a serious health condition.  

Finally, Massachusetts provides one more layer of protection for employees: The Commonwealth’s “small necessities law” allows workers to take up to 24 hours of unpaid leave to care for family members.  That includes the right to take time for your child’s school activities, such as parent-teacher conferences, your childs medical appointments, and your elderly relative’s medical appointments.  Like the Family Medical Leave Act, the law only applies to employers with more than 50 employees, and you must be an “employee” to qualify, which, again excludes independent contractors, gig workers, and freelancers.  

If you believe your employer is not granting you leave to which you are entitled, contact our employment lawyers at (617) 742-6020.  

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