7.24.20

In 2019, the Massachusetts Legislature passed a Paid Family and Medical Leave Law. The law provides for 12 weeks of paid family leave per benefit year, 20 weeks of paid medical leave for the worker’s own serious health condition, and up to 26 weeks of paid leave to care for a family member who is a covered service member. Eligible Massachusetts workers can begin to take advantage of their benefits under the law starting January 1, 2021.

The state Department of Family and Medical Leave has been responsible for drafting regulations regarding the implementation of the PFMLL. The Department issued draft regulations in January 2019, revised draft regulations in March 2019, and final regulations effective July 1, 2019, concerning (among other things) who had to make contributions to the state for the paid leave. In May 2020, the Department issued proposed amendments to the regulations, and the Department anticipates these will be finalized today. Although some of the key provisions of the amendments are noted below, a redlined copy of the all of the changes released by the Department can be found here

“Accrued paid leave”

Existing:  “Accrued paid leave” is leave earned by or otherwise provided to a covered individual pursuant to a benefit plan or policy offered by an employer including, but not limited to, sick leave, annual leave, vacation leave, personal leave, compensatory leave, or paid time off.

Proposed amendment:  “Accrued paid leave” would not include an employer’s disability policy or an employer’s paid family or medical leave policy.

Employee’s average weekly wage

Under the proposed amendments, if an employee has multiple employers, the average weekly wage would be calculated for each employer separately.

Definition of “active duty”

Existing: Full-time duty in the active military service of the United States or the National Guard.

Proposed amendment: “Active duty” would apply to full-time service in the National Guard only if the service member is deployed to a foreign country.

Average working week

Under the proposed amendments, the average working week would be calculated by taking the average number of hours worked from the two highest quarters of the 12 months preceding the individual’s application for benefits.

“Extended Illness Leave Bank”

The proposed amendments would add a new definition for “Extended Illness Leave Bank,” which is “[a] voluntary program where covered individuals may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under” the PFMLL. 

Treatment by a health care provider

Presumably in response to the COVID-19 pandemic, the requirement for treatment by a health care provider has been revised to include an in-person visit or telehealth visit to a health care provider. The first (or only) in-person or telehealth treatment visit would have to take place within seven calendar days of the first day of incapacity.

Intermittent leave

Under the proposed amendments, intermittent leave would have to be taken in increments consistent with the established policy that the employer uses to account for use of other forms of leave. However, the Department would not pay in increments smaller than 15 minutes. A covered individual would not be allowed to apply for payment for benefits associated with intermittent leave until he or she has at least 8 hours of accumulated leave time, unless more than 30 calendar days has lapsed since the initial taking of the leave.

Job-protected leave

Employees would be entitled to job-protected leave even if they do not file an application for benefits with the Department, provided that they use other types of leave (including accrued paid leave or unpaid leave approved by an employer) and that the leave is taken for certain specified purposes. The specified purposes would be leave under (1) a temporary disability policy or program of an employer, (2) a paid family or medical leave policy of an employer, or (3) an Extended Illness Leave Bank provided by an employer. Employees who meet these requirements would be entitled to job-protected leave as of the date that the leave begins, and their leave would run concurrently with the leave period provided by the PFMLL.

Private Paid Family and Medical Leave plans

Coverage

The amended regulations for private plans would clarify that all employees must be covered no later than the first day of the first quarter immediately after the plan’s approval date, or on the date of hire of the employee if the plan has already been approved. Approved private plans may require employees to provide verification of wages earned with another employer in Massachusetts for purposes of determining whether the employee meets the PFMLL’s financial eligibility requirements for receipt of benefits.

Coverage when transferring from a private plan to the Trust Fund (and vice versa)

If an employer transfers to an approved private plan, the Department would continue to provide paid benefits to employees for the duration of their leaves if the leaves were filed before the effective date of transfer. Likewise, when an employer switches from a private plan to the Trust Fund, it would be required to continue to provide paid benefits for the duration of an employee’s leave if the leave was filed with the private plan before the effective date of the transfer. Employers who switch insurance carriers would be required to ensure there are no gaps in coverage.

Applications for private plan benefits by former employees

For employees who have been separated from employment for less than 26 weeks, benefits applications would depend on whether the employee is employed or unemployed. If the employee is unemployed at the time he or she submits the benefits application, the application would be submitted with the former employer. The Department or, in the case of a private plan, the employer, would be permitted to ask whether the individual is currently employed.

Benefits applications from employees who are employed at the time of application would be submitted with the current employer. If a new employer has a private plan, the employee should submit the application for benefits to the plan in accordance with its requirements, and may be required to verify wages earned. 

Leave for substance use disorders

Under the revised regulations, a “substance use disorder” may be a serious health condition under certain circumstances. However, family or medical leave could be taken only if the substance use disorder treatment was by a health care provider, by a provider of health care services on referral by a health care provider, or by a program licensed or approved by the Massachusetts Department of Public Health. An absence because of the employee’s use of the substance, rather than for treatment, would not qualify for leave.

In addition, treatment for a substance use disorder would not prevent an employer from taking employment action against an employee. The employer would not be permitted to take action against the employee because the employee exercised his or her right to take leave for treatment. However, even employees who are taking leave could be terminated if the termination was pursuant to an established policy that (1) is applied in non-discriminatory manner, (2) has been communicated to all employees, and (3) provides that under certain circumstances an employee may be terminated for substance use.

An employee would be permitted to take leave to care for a covered family member who is receiving treatment for a substance use disorder. An employer would be prohibited from taking action against an employee because the employee took this type of leave.

Substitution of employer-provided paid leave

The proposed amendments clarify that employees would not receive any paid benefits from the state for the period of time during which they received accrued paid time or leave through their employers’ extended illness leave programs.

Weekly benefit amount from the Department

The proposed amendments would make several changes to the provisions governing the calculation of weekly benefits. Covered individuals with multiple employers would not be required to take paid family or medical leave from each employer during a single period of paid family or medical leave. In addition, unless the aggregate amount a covered individual receives would exceed the covered individual's average weekly wage, the weekly benefit amount for a period could not be reduced by the amount of wage replacement that a covered individual on family or medical leave receives for that period from wages received from another employer or through self-employment.

Reimbursement for employers who make certain payments to individuals covered by the PFMLL

Under the proposed amendments, employers who make payments to an employee during a covered leave that are equal to or greater than the amounts required under the PFMLL would be reimbursed from any benefits due. However, reimbursement would not be permitted for an employer that has received an approved exemption. To qualify for reimbursement, payments would have to be made from a temporary disability policy or program, a paid family or medical leave policy, or an extended illness leave bank. The program would also have to be separate from or in addition to other accrued paid leave available to the employee.

Obtaining leave to care for a relative with an exigency related to active duty military service

Although the existing regulations required the Social Security number or individual taxpayer identification number of the family member called to duty, the amendments would require only information from the covered individual that proves to the satisfaction of the Department the identity of the family member.

For a printer-friendly copy, click here.

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