Global Compliance Desk – Massachusetts

Massachusetts Paid Family Medical Leave: Steps to Take in 2019

Massachusetts employers must be aware that beginning, July 2019, employees will be entitled on an annual basis to receive a medical and family leave of up to 26-weeks each year.

Notice to Employees

The DFML published template notices that employers can use to fulfill the notice requirement of the PFMLA and required employers to distribute the notices and receive an acknowledgment that employees received the notice by May 31, 2019. There is one form for notice to W-2 employees for employers with 25 or more covered individuals and one notice for employers with fewer than 25 covered individuals. Similarly, there is one form for notice to 1099-MISC contractors for covered business entities with 25 or more covered individuals and a separate form for notice to 1099-MISC contractors for covered business entities with fewer than 25 covered individuals.

There is one sheet for entities with 25 or more covered individuals and another sheet for entities with fewer than 25 covered individuals. Covered individuals do not need to sign these sheets, but entities must keep a record of the sheets’ distribution. 

The Massachusetts Department of Family and Medical Leave has released a updated poster for employers on the Massachusetts Paid Family and Medical Leave Act (PFMLA), G.L. c. 175M. The guide clarifies some questions generated in January. 

Accrual

• Under the Massachusetts Paid Family Medical Leave Act (MPFLA), employees are entitled to leave of up to 20-weeks for an employee’s own health condition, and family leave of up to 12-weeks to care for family members. In addition, qualifying employees may use leave under the MPFLA to bond with a child as well as for leaves associated with a family member’s military service.
• For employers who are subject to the federal Family and Medical Leave Act (“FMLA”), many of the provisions of the new law will sound familiar.  As under the FMLA, leave applies to time off for the employee’s own serious health condition and to time off in order to care for a family member with a serious health condition.  The term “serious health condition” has the same definition as under the federal FMLA.  In addition to covering conditions requiring an in-patient stay in a medical facility, it applies to conditions requiring “continuing treatment” by a health care provider.  The “continuing treatment” prong is broad and is expected to cover chronic conditions and conditions such as pregnancy, as well as conditions resulting in a short-term period of incapacity when combined with ongoing treatment by a healthcare provider.
• In addition, and also consistent with FMLA provisions, family leave may also be used to bond with a child in connection with childbirth, adoption, or foster care placement, as well as for certain leaves associated with a family member’s military service.  Under the FMLA, and the new Massachusetts law, leave to care for family members who were injured while performing military service is protected for 26 weeks.

The implementation of the paid leave provisions is delayed until 2021, but employers will be required to start making financial contributions to support the paid leave program starting on July 1, 2019.

Paid medical leave is capped at 20 weeks per benefit year, and paid family leave is capped at 12 weeks per year. The combined amount of family and medical leave that an individual may take in a benefit year is capped at 26 weeks and will run concurrently with the FMLA. 

The new law is modeled on the federal FMLA — but with some significant differences, including the following:

• Provides for payments: The FMLA mandates time off but does not require that such time be paid.  The Massachusetts law requires payment for the absences, to be administered by the newly formed Department of Family and Medical Leave.
• Provides a greater amount of protected leave: Under the Massachusetts law, 20 weeks is required where the leave is for a covered individual’s own health condition and 26 weeks for combined family and medical leave.
• Provides greater protection against terminations while on leave: Under the FMLA, an employer may refuse to reinstate an employee if the employer has grounds for ending the employment. In contrast, Massachusetts law appears to narrow the grounds for denying reinstatement to changes in economic conditions or changes in operating conditions.
• Covers more employers: The FMLA is limited to employers with 50 or more employees within 75 miles of the work site.  The Massachusetts law applies to all Massachusetts employers, regardless of size.
• Covers more employees: The FMLA applies only to employees who have worked at least one year and at least 1250 hours over the previous twelve months.  The Massachusetts laws apply more expansively to any employee who, while working for Massachusetts employers, has earned enough money over the preceding year to meet the financial test for unemployment benefits.
• Covers some former employees and non-employees: The FMLA applies only to existing employees. The Massachusetts law provides for payments to former employees who meet the financial eligibility test at the time of their separation from employment and whose employment ended within 26 weeks of the start of the leave. 
• Provides for an expanded definition of a family member: In determining eligibility for family leave, the FMLA limits a family member to the covered employee’s spouse, child, and parent.  The Massachusetts law includes these family members and also allows a covered individual to take family leave for domestic partners, parents of a spouse or domestic partner, grandchildren, grandparents, and siblings.
• Limits how employers track the benefit year: The FMLA allows employers to track absences under several different methods.  The Massachusetts law requires employers to measure the benefit year going forward for 52 weeks from the Sunday immediately preceding the date that a covered individual first uses protected leave.
• Restricts employers from requiring employees to use paid time off while on protected leave: Under the FMLA, an employer may require an employee to use any paid sick time or vacation time or PTO while taking FMLA Leave.  The Massachusetts law prohibits employers from requiring employees to use such time concurrently.  This means that the 40 hours of mandated Earned Sick Time under Massachusetts law.

• Applications for Exemption: If employers are already providing paid leave to their employees, starting on April 29, 2019, they may begin to submit approved-plan applications through MassTaxConnect to determine if they may be exempt from collecting and remitting payments to the Family and Employment Security Trust Fund. To qualify for the annual exemption, an employer’s private plan must provide the same or better benefits than those available under the new law. Note that employers with fewer than 25 employees are not required to pay the employer portion of the leave premiums.

Employers will need to obtain notices of rights after they are prepared by the Department of Family and Medical Leave.  Employers are required to post these notices and to provide copies of the notices to new employees and, in some cases, to self-employed individuals providing contracted services. Employers with 25 or more employees will need to start making the required financial contributions as of July 2019.