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On January 23, 2019, the Massachusetts Department of Family and Medical Leave (Department) provided our first look at its draft regulations for the Commonwealth’s Paid Family and Medical Leave Program (MA PFML). As we’ve previously written, the MA PFML will provide temporary wage replacement to eligible workers when they take medical or family leave for certain covered reasons. The Department provided this timeline of key dates for implementation of the MA PFML:

Timeline Chart of Massachusetts Paid Family and Medical Leave Regulations

The draft regulations are subject to change prior to being finalized by July 1, 2019. Here are the highlights of the draft regulations that will help employers understand how the MA PFML will be implemented.

Contributions:

Employers must begin making contributions to the Family and Employment Security Trust Fund July 1, 2019. The initial contribution rate is 0.63% on the first $128,400 of annual earnings, with contribution rates adjusted annually by the Department. Employers must submit the entire contribution amount to the Fund but may deduct certain amounts from employee wages to cover the employee’s share.

The total contribution rate is allocated between the family leave contribution rate and the medical leave contribution rate. This allocation is based on the Department’s estimate of anticipated costs of benefits and administration of the program. The Department may change the allocation of rates as necessary once per year.

The amount an employer may deduct from employees’ wages is as follows:

  • Medical Leave Contribution: Up to 40% of the contribution required for medical leave.
  • Family Leave Contribution: Up to 100% of the family leave contribution required for that employee.

Remittances will be done on a quarterly basis.

Please note that employers with fewer than 25 employees in the Commonwealth are not required to pay the employer portion of premiums for family and medical leave.

Notice Requirements:

  • Employer Notice: Beginning July 1, 2019, employers must provide notice to an employee of the MA PFML law via posting and written notice, issued no more than 30 days from the beginning date of an employee’s employment.
  • Employee Notice: An employee filing a claim must provide the employer at least 30 days’ notice of the anticipated start date of a leave, length of leave, type of leave, and date of return. If 30 days’ notice is not possible, for reasons outside of the employee’s control, the employee must provide notice as soon as practicable. Please note that if an employer does not provide the required notice described above, the employee’s notice requirement is waived.
  • Department Notice: The Department must notify the employer not more than five business days after an employee has filed a claim. The notice will provide the employee’s name, type of leave requested, expected duration of the leave, whether for continuous or intermittent leave, and any other information relevant to verification of the claim.

Claim Process:

Beginning January 1, 2021, individuals seeking benefits must file a claim using forms provided by the Department. When filing a claim, the individual must consent to share information with the employer and health care provider in order to process the claim.

Applicants for benefits must still comply with any attendance and call-in procedures established by the employer. If approved for intermittent leave benefits, the employee must work with the employer to make an effort to take leave so as not to unduly disrupt the employer’s operation.

Certifications:

Employees filing a claim for benefits must provide certification to support the need for leave.

Requests for Employer Information:

The Department may request information from an employer to process a claim. Employers will have five calendar days to provide the requested information, which may include the employee’s wages for the prior 12 months, job description, weekly hours worked, full- or part-time status, prior requests for leave, amount of paid leave already taken during the benefit year, a description of the employer’s own paid leave policies, and whether the employee will receive any paid leave benefits during the requested leave period, and any other relevant information, including evidence of a fraudulent claim.

State Administration:

The Department will notify applicants of their eligibility for paid leave benefits within 14 calendar days of receiving a claim and will pay benefits not less than 14 calendar days after the eligibility determination, unless that determination occurs more than 14 days before the onset of eligibility, in which case benefits shall be paid as soon as eligibility begins. The Department will notify the employer and the individual of the approval or denial of a claim.

Benefits:

Covered employees will be eligible to receive paid leave benefits beginning in 2021, with benefits starting on January 1, 2021, for most covered reasons, except for family leave to care for a family member with a serious health condition, which will allow benefits beginning on July 1, 2021. The breakdown of eligibility for and amount of benefits is:

  • January 1, 2021:
    • Total Amount of MA PFML: Up to 26 total weeks, in the aggregate, of family and medical leave in a benefit year.
    • Medical Leave: Up to 20 weeks of medical leave in a benefit year for the employee’s own serious health condition that incapacitates the employee from work.
    • Birth, Adoption, Foster Placement: Up to 12 weeks of family leave in a benefit year for the birth, adoption, or foster care placement of a child.
    • Qualifying Military Exigency: Up to 12 weeks of family leave in a benefit year because of a qualifying exigency due to a family member who is on active duty or has been notified of an impending call to active duty in the Armed Forces.
    • Care of Service Member: Up to 26 weeks of family leave in a benefit year to care for a family member who is a covered service member.
  • July 1, 2021:
    • Family Leave: Up to 12 weeks of family leave to care for a family member with a serious health condition.

A benefit year is defined in the draft regulations as 52 consecutive weeks beginning on the Sunday immediately preceding the first day that job-protected MA PFML begins for the covered individual.

Weekly Benefit Amounts:

Weekly benefit amounts will be calculated based on the employee’s average weekly wage (AWW) at the following percentages:

  • The portion of an employee’s AWW that is equal to or less than 50% of the state’s AWW will be paid at 80%.
  • The portion of an employee’s AWW that is more than 50% of the state AWW will be paid at 50%.

The initial cap on the maximum weekly benefit amount will be $850 to be updated annually to an amount that is 64% of the state AWW. The annual adjustment must be established by October of each year, becoming effective on January 1 of the following year.

Weekly benefits will be reduced by wages or wage replacement the covered individual receives under a government program or law (such as workers’ compensation), other than for an unrelated permanent partial disability, or under other state or federal temporary or permanent disability benefits law, or the employer’s permanent disability policy or program.

Seven-Day Waiting Period:

An initial seven calendar-day waiting period will apply to approved initial claims for benefits, during which no MA PFML benefits are paid. The waiting period, however, will count against the total available period of leave in a year. In addition, an employee may use accrued sick or vacation pay, or other paid leave provided under an employer policy, during the first seven calendar days of leave.

Job Protection, Benefits, and Retaliation:

An employee who has taken MA PFML 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 leave. An employee’s right to accrue vacation time, sick leave, bonuses, advancement, seniority, and length of service credit or other employment benefits, plans or programs may not be reduced by the taking of PFML leave. During leave, the employer must continue to provide for and contribute to the employee’s employment-related health insurance benefits, at the level and under the conditions coverage would have been provided if the employee had not taken leave.

Employers may not retaliate against an employee for requesting or using MA PFML, or for filing a complaint, testifying, or providing information connected with any proceeding related to rights under this law. The draft regulations contain a presumption that any negative change in an employee’s status, pay, benefits, seniority or other terms of employment that occur within six months of an employee’s return to work after a covered leave, or participation in proceedings will be presumed to be retaliation.

Private Plans:

Employers may apply to the Department for approval of a private plan that offers individuals all of the same rights, protections, and benefits set forth in the Massachusetts PFML law. A private plan may provide paid medical leave coverage, paid family leave coverage, or both. Private plans may be self-insured or insured, with the policy forms issued by an approved insurer. Approvals of private plans will be effective for one year and will be reviewed annually.

Coordination with the FMLA and Other State Leaves:

To the extent that an employee is eligible for leave under multiple leave laws, MA PFML will run concurrently with FMLA leave, Massachusetts Parental Leave, and other applicable leaves.

Important Dates:

The Department will hold public listening sessions and receive input on its draft regulations prior to publishing the formal regulations by March 29, 2019. After a public comment period, the Department will finalize the regulations by July 1, 2019.

Contributions to fund the program will begin on July 1, 2019. Also on July 1, 2019, employers must begin posting a workplace notice about the program and providing written information to each employee within 30 days from the start of employment. Watch for the Department to issue approved notices prior to that date.

On January 1, 2021, eligible employees may start claiming benefits for bonding with a child or newborn, the employee’s own serious health condition, and service member-related events. Benefits for care of a family member with a serious health condition begin on July 1, 2021.

Update on ReedGroup’s Services

For those who use ReedGroup’s leave management services or software, please be advised that we are following the developments for Massachusetts PFML and when regulations are finalized, we will incorporate necessary steps into ReedGroup’s product offerings in advance of the effective date for benefits.

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

Sue Woods

Sue Woods

Sue Woods, Esq. is Senior Compliance Counsel at ReedGroup where she focuses on product and operational compliance in leave and absence management solutions. Sue brings years of experience practicing labor and employment law, including advising employers on the intricacies of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII, and state and local leave laws. By writing timely articles and speaking at seminars and events, Sue strives to break down tricky leave compliance issues into actionable, practical employment solutions.