A Grand Bargain for Business?
By John S. Gannon, Esq. & Amelia J. Holstrom, Esq.
Last month, the Massachusetts Legislature passed the so-called ‘grand bargain’ bill. The new law, which was signed by Gov. Charlie Baker on June 28, will require all private employers — regardless of size — to provide paid family and medical leave to employees. The law also gradually raises the state’s minimum wage to $15 per hour.
Here is what businesses need to know about this important legislation.
Paid Family and Medical Leave
Beginning on Jan. 1, 2021, Massachusetts employees will be eligible for what we believe to be the most generous paid family and medical leave (PFML) program in the nation. Employees will be able take up to 20 weeks of PFML per year for their own medical condition. They will also be entitled to 12 weeks of PFML to care for a family member suffering from a health condition. The definition of a ‘family member’ is very broad and includes not only a child, spouse, or parent, but also in-laws, domestic partners, grandchildren, grandparents, and siblings.
The new law also allows employees to take up to 12 weeks of paid leave to bond with a newborn or newly adopted child. Employees will receive a percentage of their existing pay, up to a maximum of $850 per week, while out on leave. Businesses are required to continue to provide for and contribute to the employee’s health-insurance benefits while employees are out. PFML may be taken, in most cases, intermittently or on a reduced-schedule basis, as well as in a continuous block.
Returning from Leave
Employees who take PFML are entitled to their same job back when they are ready to return to work, or an equivalent position with the same status, pay, benefits, and seniority. Further, employers may not retaliate against employees for taking PFML. Significantly, any negative change in the terms or conditions of employment that occurs during a leave, or within six months after an employee returns from leave, is presumed to be unlawful retaliation.
Stated another way, if an employee is let go while out on PFML, or within six months of returning from leave, the employer is presumed to have retaliated against the employee. Employers can rebut the presumption only by clear and convincing evidence of an independent justification for the change. This is a high standard that requires the employer to show that its business-based justification for the negative change is substantially supported by the evidence.
Employers found liable may be ordered to reinstate the employee and to pay three times the employee’s lost wages and benefits, plus reasonable attorneys’ fees and costs.
Who Will Administer and Pay for the Program?
A new state agency, the Department of Family and Medical Leave, will be created to administer the program. PFML will be funded by mandatory employer contributions, at a rate of 0.63% of the employee’s wages. That rate is subject to increase annually.
Employers may require employees to pay a percentage of the contribution, and employers with fewer than 25 employees are exempt from paying the employer share of the contributions. Those contributions will begin on July 1, 2019. Employers will be able to opt out of the program by meeting their obligations under a private plan, such as through an approved insurer or self-insured policy. The private plan must provide the same rights, protection, and benefits as required by the state law.
The law also increases the minimum wage for tipped employees from $3.75 per hour to $6.75 per hour over a five-year period and from $11 per hour to $15 hour for all other employees over the same period.
Next Steps for Businesses
Employers paying employees less than $12 per hour ($4.35 for tipped workers) will need to plan now for increased wages in a few months. As for PFML, although the leave benefits are a few years away, employers need to think about how they will handle what we expect to be a sharp increase in employee absenteeism.
Typically, the greatest deterrent against missed work is lack of pay. This will not be the case come January 2021. Employees working for businesses large and small will be able to take PFML for almost one-quarter of the year, and in some cases more than that. Businesses need to start thinking now about how they will plan for those extended absences. They also need to put effective policies in place to curb abuse of state-mandated paid leave.
John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected] Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation harassment, and wrongful termination, as well as wage and hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]