Coronavirus (COVID-19): DOs and DON’Ts for Massachusetts Employers

The following Coronavirus (COVID-19) considerations for Massachusetts employers reflects the state and federal government’s guidance as of Monday morning, March 16, 2020.

DO

  1. Apply preventive and response measures uniformly to all employees.
  2. Consider flexible work arrangements, including work-from-home or other arrangements, to the extent possible in the interest of social containment. Consider these arrangements for sick employees, employees taking care of sick household members, and/or for employees who are unable to work due the closure of their children’s schools.
  3. Require employees to provide immediate notice if the employee or a household member receives a presumptive or confirmed COVID-19 diagnosis, or if the employee has known exposure to the virus.
  4. If an employee or his/her household member receives a presumptive or confirmed COVID-19 diagnosis:
    1. Allow the employee to take sick leave as required by Massachusetts law and by established workplace policies and procedures. Depending on your particular circumstances, continue to comply with MA Paid Sick Leave law for qualified employees.  Consider expanding paid sick leave to the extent feasible (Massachusetts employers are permitted to provide more generous benefits than the minimum statutory requirements).
    2. For employers with 50+ employees, also permit the employee to take unpaid leave of up to 12 weeks under the federal Family and Medical Leave Act.
    3. Consider requiring a return to work note from the employee’s treating physician confirming that the employee is healthy and no longer contagious before returning to work.
    4. Encourage employees to contact the Massachusetts Department of Unemployment Insurance to inquire whether they may be eligible for unemployment benefits if they are unable to work for reasons related to COVID-19. As of March 15, 2020, the Department of Unemployment Insurance intended to file emergency regulations allowing employees impacted by COVD-19 to collect unemployment benefits if their workplace is shut down for four (4) or fewer weeks.  The following conditions apply for employees to receive these benefits
      1. Employees must remain in contact with their employer during the shutdown (frequency and method of contact not yet determined);
      2. Employees must be available for any work their employer may have for them and that the employee is able to perform
      3. Employers may request an eight (8)- week period of benefits for their employees, if the business will be shut down for eight weeks (method of requesting the extension not yet determined)
      4. Notably, federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19 and employees who are taking sick or paid leave provided by the employer are not likely to be considered “unemployed” for the purposes of unemployment benefits.
    5. Notify other employees of the precautions the employer is taking based on the probable or positive diagnosis of a colleague or their household member—without identifying the individual by name.
  5. Continue to make contributions to the Massachusetts Paid Family and Medical Leave fund in accordance with existing procedures. However, paid leave benefits available to employees pursuant to the Paid Family and Medical Leave Act do not become available until January 1, 2021.
  6. Continue to seek guidance from federal, state, and local public health, education, and emergency preparedness agencies to gather information concerning the spread and severity of COVID-19.
  7. Provide as much advanced notice as practicable to your employees if you are forced to close business operations for reasons related to COVID-19. All notices should be in writing.

DON’T

  1. Release the identity of the employee or household member who may have been exposed to or has tested positive for COVID-19.
  2. Release the personal health information of any employee or household member who may have been exposed to or has tested positive for COVID-19, unless required by law.
  3. Require employees to undergo medical examinations (e.g., fever checks) at the workplace unless further guidance allowing for such examinations is provided by federal, state, and/or local public health offices is provided.
  4. Answer questions in a way that could inadvertently disclose confidential personnel or medical information of any employee.
  5. Forget to apply established workplace policies and procedures, but allow flexibility as necessary given the current situation.

Employer response and obligations during the COVID-19 outbreak remain fluid. Continue to communicate with your employees, review your relevant policies and procedures, and consult with legal counsel as necessary. As always, your Barton Gilman team stands ready to assist with any questions.

For more information

For more information on complying with the state and federal governments guidance on Coronavirus (COVID-19) for Massachusetts employers, please contact Greg Vanden-Eykel at 617.654.8200.

Barton Gilman’s employment law team provides comprehensive legal guidance to a wide variety of employers on all aspects of the employment cycle—from hiring through separation—including personnel policies and handbooks, non-compete agreements, and representation before state and federal courts and agencies. To learn more, please visit www.bglaw.com/services/labor-employment/.