Paid Family and Medical Leave Arrives 1/1/21 in Massachusetts – Are you Ready?

In 2018, Massachusetts enacted a statute that provides paid family and medical leave (MPFML) benefits to all employees including full-time, part-time, regular and seasonal.  All Massachusetts employers, regardless of size, should be aware of and review the key provisions of the MPFML and prepare a policy for implementation for a January 1, 2021 effective date.  Your eligible employees may apply for benefits with the Commonwealth, for a January 1st effective date of leave, beginning December 2, 2020.

The law applies to all Massachusetts employers with one or more employees.  Some employers that are excluded include religious organizations, cities, towns, districts, political subdivisions, services provided by real estate brokers, insurance agents in commission only positions.

An employer with fewer than 25 employees must contribute to the MPFML Fund on behalf of their employees (contributions will be taken out of employee paychecks) but do not need to make an employer contribution.  An employer with more than 25 employees must contribute to the Fund on behalf of their employees and must also make an employer contribution.  The State provides a calculator to determine the MPFLM contributions.

Below we describe general information about the new law, and present at the bottom of this article a list of action items for employers to consider.

EXPLANATION OF BENEFITS

Beginning January 1, 2021:

  • Employees may be entitled to up to 12 weeks of paid family leave in a benefit year for the birth, adoption or foster care placement of a child. For multiple births, no more than 12 weeks of leave benefits are permitted in a benefit year.
  • Employees may be entitled to up to 12 weeks of paid family leave 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.
  • Employees may 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. Employees may qualify for MPFML benefits for substance use disorder that qualifies as a serious health condition.
  • Employees 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 undergoing medical treatment or otherwise addressing consequences of a serious health condition relating to the family member’s military service.

Beginning July 1, 2021:

  • Employees may be entitled to up to 12 weeks of paid family leave in a benefit year to care for a family member with a serious health condition. Family members include spouse, domestic partner, child, parent or parent of spouse or domestic partner, grandchild, grandparent, sibling or person who stood in loco parentis.  *Please note that the definition of family members under MPFML is different than FMLA and may be different than the definition of family members in other leaves of absence policies.
  • Employees may be eligible for up to 26 weeks, in aggregate, of paid family and medical leave in a single benefit year.

INTERACTION WITH OTHER LEAVES OF ABSENCE

One of the most important components of the MPFML is the interaction with other state and federal laws.  Leave taken under MPFML will run concurrently with leave taken under other applicable state and federal leave laws, including but not limited to MA Parental Leave Act, MA Sick Leave Law, and the federal Family and Medical Leave Act (FMLA), when leave is for a qualified reason under those acts.  MPFML will also run concurrently with vacation/PTO policies, Short Term Disability, and Long Term Disability.

The benefit year for MPFML is the 52-week period beginning on the Sunday preceding the MPFML start date.  For larger employers, covered under FMLA, most employers have opted to use a “rolling” 12-month period measured backward from the first date of the employee’s leave.  Other calculation methods include calendar year, fiscal year, and “rolling” forward from the first date of the employee’s leave.  Employers may want to review/reassess your FMLA tracking to be more consistent with MPFML and for ease of tracking.  If you decide to change your calculation method for the 12-month eligibility period, you will need to provide your employees with 60 days’ notice.  However, during the transition, the change must provide the employee with leave entitlement under the method that provides the greatest benefit to the employee.

MPFML may be taken on an intermittent basis, in 15-minute increments consistent with other leaves of absence policies; however, payment of MPFML benefits will generally not be made until 8 hours of leave have accumulated. Intermittent leave may be taken for an employee’s own serious health condition, to care for a family member with a serious health condition or care for a service member.

PAY DURING LEAVE

MPFML is paid leave. Benefits are paid through the Department of Family and Medical Leave.  An employee’s weekly benefit amount for MPFML will be based on the employee’s earnings, with a percentage of wages up to a maximum of $850 per week.  There is a 7-calendar day waiting period, which is unpaid, for all MPFML leaves except for medical leave during pregnancy or recovery from childbirth. Employers may provide your employees the option of using accrued but unused vacation/PTO for the waiting period.

An employer may not require an employee to use vacation/PTO under MPFML. An employee may use vacation/PTO in lieu of applying for state benefits.  This paid leave will run concurrently with MPFML benefits and will count towards the MPFML allotment of leave time taken.  An employee may not add vacation/PTO pay to supplement benefits paid by MPFML.MPFML will also run concurrently with Short Term Disability and Long Term Disability.  However, benefits paid through MPFML will not be reduced by disability payments. The time taken and paid for through these will run concurrently with MPFML and will count towards an employee’s MPFML allotment.

JOB PROTECTION

Generally, an employee who has taken MPFML, under the law, must be restored to the employee’s previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of the leave.  The employee’s right to accrue vacation/PTO, sick leave, bonuses, advancement, seniority and length of service credit or other employer benefits, plans or programs cannot be reduced by taking MPFML.

CONTINUATION OF HEALTH INSURANCE

Employers are required to continue to provide for and contribute to the employee’s employment-related health insurance benefits, at the level and under the condition coverage would have been provided if the employee had continued working continuously for the duration of the leave. Employees will be required to continue to pay any employee contributions towards the health insurance benefits.  It is recommended that employers discuss payment options with employees prior to the start of MPFML.

NO RETALIATION

It is unlawful for employees to discriminate or retaliate against an employee for exercising any right to which an employee is entitled under MPFML.  Any adverse action taken within 6 months of an employee taking leave for reasons associated with MPFML is presumptively retaliatory.  An employee or former employee who is discriminated or retaliated against for exercising rights under the law may, not more than three years after the violation occurs, institute a civil action.

HOW TO FILE A CLAIM

Employees must file claims for paid family and medical leave benefits with the Department of Family and Medical Leave, using the Department’s forms.  Forms and claim instructions will be available on the Department’s website: www.mass.gov/DFML.

Employees are required to provide, to their employers, at least 30 days’ notice (unless not practicable), but not more than 60 days’ notice to take MPFML.  This notice needs to include the start date of MPFML, the anticipated length of the leave, and the expected date of return.  An employee who is unable to provide 30 days’ notice due to circumstances beyond his or her control is required to provide notice as soon as practicable.

As part of the application process for medical leave, employees will be required to submit a medical certification form, provide consent that the state can share this information with the employer and provide evidence that s/he has provided notice of leave to the employer.

Employers will be required to provide wage/earnings for the past 12 months, description of the employee’s position/schedule and current leave policies, and whether the employee is receiving pay from these policies.

PRIVATE PLAN EXEMPTIONS

Employers may apply for private plan exemptions as long as their plans provide the same or better benefits as those provided by MPFML, does not cost employees more than they would be charged by MPFML, provides an appeal process with the private plan administrator prior to an appeal through the Department of Family and Medical Leave.  Private plans must be available to the entire workforce. A private plan will become effective the first date in the next quarter following approval.

EMPLOYER ACTION ITEMS

As January 1, 2021 approaches, Massachusetts employers should:

  • ensure they understand MPFML and the complexities of interactions with other state and federal laws, pay and benefits;
  • be adding a MPFML policy into their handbooks as soon as possible;
  • if also covered by the federal FMLA, employers should review their policies and evaluate how the leave eligibility is calculated, and consider aligning the calculation with the MPFML;
  • communication with employees is important concerning this new statutory benefit – employers should consider when and how they want to announce the new benefit, policy changes, etc.;
  • align their onboarding process to include MPFML, including ensuring that new hires receive and sign the Employer Notice to Employee Rights and Obligations under MPFML;
  • it is also good time to review your PTO/vacation and sick leave policies as well as your Short and Long Term Disability policies and re-send to employees;
  • take steps to provide a policy to your employees regarding the pay options for employees taking MPFML.

WLG’s attorneys (Mark and Maureen) and HR consultant (Rita) can assist employers with these compliance efforts.

KEY CONTACT INFORMATION AND WEB RESOURCES

The Massachusetts Department of Family and Medical Leave
Charles F. Hurley Building
19 Staniford Street
Boston, MA  02114
(617)626-6565
MassMPFML@mass.gov

For more detailed information, please go the Department’s website: www.mass.gov/DFML

* Image Credit: (c) Burdun www.fotosearch.com
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