Massachusetts Paid Family Medical Leave: Coming Soon
Massachusetts will soon offer one of the most generous family and medical leave programs in the country. While the law is complex and its requirements are being fleshed out by administrative regulations, the basics follow.
- Beginning in 2021, most Massachusetts employees will be eligible, per benefit year, for to up to 26 total weeks, in the aggregate, of paid family and medical leave. Covered individuals are eligible for up to 12 weeks of family leave in a benefit year to care for a family member with a serious health condition or bond with a new child, and up to 20 weeks of paid leave to address their own serious health condition.
- Under the proposed regulations, it appears the Department of Family and Medical Leave will be responsible for making decisions about whether to approve employees for paid leave under the law. Under the proposed regulations, all claims for benefits shall be supported by a certification evidencing that leave serves a covered purpose.
- The program will be funded by a new payroll tax at the initial rate of 0.63 percent, which goes into effect beginning July 1, 2019. Benefit amounts will be determined based on a percentage of the employee’s weekly income, up to a maximum of $850 per week, with the maximum benefit adjusted periodically, and with the department administering the benefit program.
- The Massachusetts law applies to all Massachusetts employers, regardless of size.
- The law allows employers to deduct part of the required contributions from each employee’s wages. Employers with more than 25 employees are required to make the full contribution but are able to deduct certain percentages of the contribution from the employee’s wages—up to 40 percent for medical leave and up to 100 percent for family leave. Employers with fewer than 25 employees do not have to pay the employer share of the cost.
- Employers may apply annually to the department for approval to meet their obligations under the new law through a comprehensive private plan. To be approved for an exemption, the private plan must confer all of the same rights, benefits, and protections as those provided under the law. The proposed regulations, at this time, do not offer any further information regarding specific criteria for exemption.
- Employers must continue to contribute to employer-sponsored health insurance during an employee’s period of family or medical leave.
- For purposes of family leave, the law broadly defines “family member” to include a domestic partner, grandparents, grandchildren, siblings, and the parents of a spouse or domestic partner.
- Leave taken under the new law runs concurrently with leave taken under Massachusetts’s Parental Leave Act and under the federal Family and Medical Leave Act (FMLA). 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, however, prohibits employers from requiring employees to use such time concurrently. As such, the 40 hours of mandated earned sick time under Massachusetts law (and any other sick leave or vacation benefits) are in addition to the leave available under the new law.
For employers who are subject to the FMLA, many of the provisions of the new law will sound familiar. For example, the term “serious health condition” has the same definition as under the FMLA. While the new law is modeled on the FMLA, there are some significant differences, including, as noted above, that the new law provides for payments and provides greater amounts of protected leave. The law undoubtedly will pose significant challenges for some employers, including, for example, where an employee has a chronic health condition requiring a significant amount of time off each year.
The law also contains strong anti-retaliation provisions. If an employee experiences any negative change in status within six months of a requested leave, the change is presumed to be retaliatory. To rebut this presumption, the employer must present clear and convincing evidence that the action was not retaliatory but instead based on an independent justification. The statute also includes a private right of action for employees, who can seek, among other things, reinstatement, attorneys’ fees, and treble damages for any lost wages.
The law created the Department of Family and Medical Leave, which has published proposed regulations for comment. The regulations are expected to be finalized by July 1, 2019.
While the right to take leave will begin in 2021, employers must take certain actions much earlier. For example, beginning on July 1, 2019, employers must post a notice describing the benefits available under the law and provide each employee within 30 days of hire a written explanation of the employee’s rights. Notices of rights are being prepared by the department and should be available in the coming months. Employers found not to have satisfied the notice requirements may face fines.
Employers should start to plan now for the new law, including budgeting for the new payroll tax. Employers with 25 or more employees will need to start making the required financial contributions as of July 2019.
Employers should also consider changes to their personnel policies and practices to comply with the law and regulations. For ease of administration, employers with FMLA requirements may want to consider revising their FMLA and leave policies to ensure compliance with the new law.
If you have any questions regarding the content of this alert, please contact Carolyn Marcotte, Counsel, at email@example.com or Brian Whiteley, Partner, at firstname.lastname@example.org, or another member of the firm’s Labor & Employment Practice Area.