On December 21, the Director of the Massachusetts Department of Family and Medical Leave issued emergency regulations interpreting the Paid Family and Medical Leave law. Most of this bulletin comes directly from the emergency regulations, with minor editing.
Purposes
The purposes of the emergency regulations are
- To clarify that births, adoptions, and foster care placements that occurred in calendar year 2020 shall be treated as qualifying events for family leave under [the new PFML law] provided that the covered individual is otherwise qualified for such leave and that such leave is being taken during the first 12 months after the child’s birth, adoption or foster care placement and completed within calendar year 2021; and
- To establish procedures that will permit acute care hospitals to maintain maximum capacity for delivery of health care services during the COVID19 pandemic emergency by reducing the risk of unmanageable reductions in staffing caused by the one-time need to accommodate accrued eligibility for family leave for bonding with an individual’s child based on qualifying circumstances occurring both in 2020 and 2021.
Birth, adoption, and foster placements in 2020
The regulations provide that PFML is generally available for “bonding” related to the birth, adoption, or foster placement of a child that occurred during calendar year 2020, under the following conditions:
- The leave must be completed within 12 months of the birth, adoption, or foster placement.
- The leave must be completed during calendar year 2021.
Special provisions for acute care hospitals
The regulations define an “acute care hospital” as “a hospital licensed under M.G.L. c. 111, §51 and the teaching hospital of the University of Massachusetts Medical School.”
The following provisions apply to bonding leave for employees of acute care hospitals under the PFML:
- The employee can take the leave more than 12 months from the date of birth, adoption, or foster placement of the child, provided that the leave does not extend beyond December 31, 2021. If the employee’s leave is extended in this way, the extension will not affect the total amount of leave available to the employee, and the employee will retain all applicable protections under the PFML law.
- Acute care hospitals may initiate discussions with employees to determine whether they intend to request an extension of their bonding leave. If the acute care hospital decides to deny a request for extended bonding leave, the denial will not be considered retaliation.
- These provisions apply to all acute care hospitals, “regardless of whether the employer provides family leave benefits through contributions to the Family and Employment Security Trust fund or through an approved private plan.” However, they have no effect on leaves taken under other Massachusetts or federal laws, including the federal Family and Medical Leave Act.
Process for employers who are not acute care hospitals
If an employer who is not an acute care hospital wants to provide extended family bonding leave, it “shall submit a written request to the Director [of the state Department of Family and Medical Leave] who, in his discretion, shall grant or deny any such request after considering likely effects on public health and safety and the public interest.”