CLIENT ALERT
By: Mark Ventola & Deniz Harrison
July 20, 2020
On July 24, 2020, the Massachusetts Department of Family and Medical Leave (DFML) will publish the final version of regulations clarifying the procedures, practices, administration and enforcement of the Paid Family and Medical Leave Law, G.L. c. 175M (PFML). While all employers are now familiar with the payroll deductions that are being made to fund this program, employers may not be as familiar with the leave benefits since they are not yet required; that will soon change.
Beginning on January 1, 2021, covered individuals will be entitled to up to 20 weeks of paid medical leave in a benefit year if they have a serious health condition that incapacitates them from work. Covered individuals will also be entitled to up to 12 weeks of paid family leave in a benefit year related to the birth, adoption, or foster care placement of a child, or because of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces. Covered individuals may be entitled to up to 26 weeks of paid family leave in a benefit year to care for a family member who is a covered service member with a serious health condition. Then, beginning on July 1, 2021, covered individuals will be entitled to up to 12 weeks of paid family leave to care for a family member with a serious health condition.
The final regulations address the administration of these leave benefits, and the recent proposed changes clarify certain aspects of these leaves. The changes are described below, addressing requirements for all employers and also for those employers who have chosen to opt out of the PFML by providing private plans with at least the same benefits required by the PFML.
All Employers
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- Continuing treatment by a health care provider no longer explicitly excludes treatment for substance abuse disorders, however, treatment for substance use disorders does not prevent an employer from taking an employment action against an employee. While an employer may not take action against the employee because the employee has exercised his or her right to take leave for treatment, if the employer has an established policy that provides that an employee may be terminated for substance use, the employee may be terminated whether or not they are presently taking leave. Separately, an employee may also take leave to care for a covered family member who is receiving treatment for substance abuse disorder.
- Employers are required to inform individuals who choose to use other employer-provided, accrued paid leave paid, rather than receive a paid benefit under G.L. c. 175M, that the use of these employer-provided programs will run concurrently with the leave period under G.L. c. 175M.
- Employees who do not file for benefits with the DFML but use another type of leave provided by their employer for a qualifying reason will be afforded job protection regardless.
Employers Exempt Due to Private Plan
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- Employers who chose to opt out of the PFML by providing coverage under a private plan may require an employee or covered contract worker to provide verification of wages earned with an employer or covered business entity in the Commonwealth for purposes of determining whether that employee or covered contract worker meets the financial eligibility requirements of PFML.
- In determining the benefit amount and leave allotment under a private plan, the weekly benefit amount and leave allotment is to be calculated based on the covered individual’s average working week in addition to wages or qualified earnings earned with the employer or covered business entity at the time of an application for benefits.
- Individuals covered solely under a private plan are not entitled to file an application for benefits with the DFML.
- For employers transitioning into or out of private plans, the rules provide for continuity of coverage under the program – PFML or private plan – under which any employee leave began.
- An employer that is dissolved or undergoes an acquisition or merger after approval of an exemption and before the renewal period must still accept applications for benefits from former employees who have been separated from their employer for less than 26 weeks and remain unemployed. The employer may inquire as to whether the individual is currently employed.
Because the PFML places obligations on all employers in Massachusetts, regardless of size or numbers of employees, it is important for every business to understand the law and be ready for the leave requests that will inevitably come. Fortunately, there is time to become familiar with these new requirements, but small employers that have not previously been subject to the Federal Family and Medical Leave Act should use the next few months to update themselves, so that the first request for leave will not become an emergency learning experience.