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Aiming High

The executive team at 6 Brick’s

The executive team at 6 Brick’s includes, from left, Taylor Shubrick, Payton Shubrick, and their parents, Dawn and Fred Shubrick.

Payton Shubrick always wanted to effect change in the world.

She never thought it would be through a product that was, for most of her life, illegal.

Specifically, when she graduated from the College of the Holy Cross in 2015 with a degree in political science — and concentrations in Africana studies and peace and conflict studies — the goal was to enroll in law school, she explained.

“Our speaker for our class talked heavily about moving mountains — ‘how do you leave this college on a hill and move mountains the rest of your life?’” she recalled. “So my idea was, I was going to have this landmark case that would change the trajectory of my career and rewrite some type of law.”

But she found herself working full-time at MassMutual instead — and missing her college days filled with extracurricular activities. “It was work, work out, and go home. There was nothing in between.”

So, with the help of her father, Fred, she secured an internship with the Springfield City Council. Meetings became more interesting after Massachusetts voters approved the legalization of adult-use cannabis in late 2016, with out-of-state operators hanging around and officials trying to hash out what the rules would be for zoning and other aspects of legalization. And Shubrick was intrigued — so much that, when the councilor she was interning for lost a re-election bid, she kept attending meetings anyway.

“I was hearing so much conversation about how these businesses were going to make millions. Honestly speaking, they made it sound so easy.”

“I was hearing so much conversation about how these businesses were going to make millions,” she recalled. “Honestly speaking, they made it sound so easy.”

But as Shubrick thought about her own potential in this new industry, she had something else in mind besides dollar signs. She’d read Michelle Alexander’s book The New Jim Crow and gained an understanding of how the failed war on drugs had impacted urban communities like Springfield. And she saw the cannabis industry as a way to engage with that community, succeed in business there, and pay it forward.

“I went to a Springfield public high school, where, if somebody dropped a dime bag, they were going to in-house suspension or being arrested in the middle of the school day because you had police officers present in the building with you. So, when you start to peel back the layers and realize this is going to be a billion-dollar industry, how can you get people in your community to benefit from that?”

The answer is 6 Brick’s, an adult-use retail cannabis shop expected to open early in 2022 on Main Street in Springfield, in the Republican complex.

“We are what most would describe as a mom-and-pop shop, which I tend to agree with since both my parents are on the executive team,” she told BusinessWest.

The Shubrick family hopes to have 6 Brick’s open by early 2022.

The Shubrick family hopes to have 6 Brick’s open by early 2022.

She thought her biggest hurdle would be getting her father on board. “Saying I wanted to be a lawyer has a certain level of prestige around it. Saying I wanted to be a legal drug dealer and own a cannabis dispensary … not so much. How do you make that business case and get Dad to switch gears?”

But not only has Fred become her biggest supporter, he’s also chief procurement officer at 6 Brick’s — a name that echoes the family name, Shubrick. Payton is CEO, while her mother, Dawn, is executive secretary, and her sister, Taylor, is head of community responsibility and quality assurance. Two younger siblings — who aren’t currently old enough to work in cannabis — round out the ‘6’ in the company name.

Once she decided to wade into this burgeoning industry, Payton knew she wanted to do it in Springfield.

“There’s this idea that, to be a star, you have to leave the area and go to Boston or New York. I heard, ‘you have so much potential; go somewhere.’ That was frustrating because I’ve always seen the potential Springfield has, and this industry, in many ways, allows me to prove people wrong; I can stay here, and I can be successful in my own right, and I don’t have to move out of the city of Springfield to do that.”

“Saying I wanted to be a lawyer has a certain level of prestige around it. Saying I wanted to be a legal drug dealer and own a cannabis dispensary … not so much.”

Furthermore, she said, “I can participate in an industry that previously caused so many people’s lives to be disrupted and negatively impacted, and I can try my hand at something I had always been interested in, which is entrepreneurship.”

It hasn’t been easy, and the journey is far from over — and the cannabis landscape in Massachusetts is still a difficult one for minority entrepreneurs, despite the state’s establishment of a social-equity program (more on that later). In a wide-ranging interview, Shubrick talked about why that’s the case, and what can be done to improve the prospects of business owners who lack the resources of large, established companies and, ultimately, create a more level playing field.

 

No Easy Road

Shubrick and her family officially launched 6 Brick’s in 2019, and the road since has been a thornier one than she had imagined.

Back in 2017, “I thought if I did my homework and put together a really strong application, I would get the license. I didn’t expect an RFP, 27 groups applying, only four being selected. That’s when your heart starts to do many palpitations — what if we don’t get picked? What happens next? I didn’t have a plan B.”

Payton Shubrick and Marcus Williams, president of the Block

Payton Shubrick and Marcus Williams, president of the Block, which seeks opportunity for minority-owned cannabis businesses, share a few words at a recent mixer.

But she did fight through to become one of the four entities chosen in Springfield’s first round of permits.

“The running joke in the industry is they never ask when are you going to open, they say where are you in the process,” Shubrick said, noting that it’s a two-pronged process. At the city level, it involves a special permit and a host-community agreement, while the state’s Cannabis Control Commission (CCC) requires a provisional license, post-provisional-license inspections, and other steps, including a certificate of occupancy (back to the city for that), which is required by the state for the final license.

Shubrick described it all as a long sequence of queues, of getting on meeting agenda after meeting agenda. “It’s a very layered process with two entities that don’t talk to each other, and you need a series of documents from each. It’s a series of waiting rooms in some capacities.”

On top of that, 6 Brick’s has had to deal with supply-chain issues during the pandemic to get its space — now 90% built out — up and running. It even had to wait for doors that were stuck in shipping containers. “There’s not a lot in your control as you think about moving through this process. So patience is key.”

All along, a Springfield-based business was the only goal, she noted, as opposed to, say, Northampton, which never capped the number of cannabis permits.

“I didn’t look to start as a business model that was going to be rinse and repeat in any city,” she explained. “I looked at it as, ‘I can be the hometown hero because, when I hire people, I’m going to hire them from the community, and I’m going to hire those who were impacted by cannabis prohibition.’ And that doesn’t just mean who did jail time — it could be their daughter, their niece, their nephew, because, let’s be honest, when someone is removed from the home and incarcerated, that whole family is impacted.”

In short, “for me, this was aligned to social-justice elements of my hometown and less aligned to me becoming a millionaire overnight.”

She found tht the road to being profitable at all begins with a lot of money up front — between $1 million and $2.5 million, typically, depending on the state of the building, its HVAC requirements, and other costs.

“I didn’t look to start as a business model that was going to be rinse and repeat in any city.”

That has been a roadblock for many applicants that have gone through the state’s social-equity program aimed at creating an entrepreneurial path for communities that were particularly hard hit by the war on drugs — most of them minority-dominated communities. Today, only 8% of cannabis companies currently open in Massachusetts are run by those who emerged from the social-equity program.

“Some go through the process but have no funding at the end of the program,” Shubrick said. “So now you’re well-versed in the process and know how to get through it, and you’re looking around, and there’s no banks giving you money. If you don’t know people with deep pockets, how do you get the right investors? I’ve seen horror stories of people who have the best of intentions and got so far in the process, but you have the wrong investor, and then it becomes a nightmare. And now you’re selling for pennies, and you’ve lost time, energy, and money.

“That’s the heartbreak people don’t talk about,” she went on. “And I wouldn’t categorize it as those people failing; I would categorize it as not having have a holistic structure in place that supports people from start to finish. It’s almost a tease in order to say, ‘hey, I’m going to show you how to make a pizza, but I’m never going to give you the ingredients so you can make your own.’ Many people simply can’t raise the money to do what they’ve gone through a program to learn how to do.”

In an editorial last week, the Boston Globe agreed, noting that the state has ignored calls to create a loan program to help equity applicants, adding that, “as if the barriers to entry weren’t high enough already, getting financing for a marijuana business is difficult because of its murky legal status.”

But the Globe cites other barriers to social-equity applicants as well, particularly the power of municipalities — which are not required to consider equity when awarding licenses — over the approval process, not to mention the head start large medical-marijuana businesses have had in the recreational license-approval process, which has paved the way for bigger medical companies to dominate the market.

“So the state has to double down on its social-equity program and prioritize licensing for minority applicants,” the Globe argues.

It’s also a hyper-competitive industry in general, Shubrick said, one where players are fiercely protecting their piece of the pie, and new retailers are often offered unfair deals to partner with growers, manufacturers, and wholesalers, and vice versa.

“It’s key to have a team of lawyers and accountants help you stay away from the sharks in the water because people are so hyper-focused on trying to extract as much money as possible, they’re not thinking through long-term impacts like ‘how can I be a decent businessperson to this other individual so maybe down the line we can do business together?’ Instead, it’s ‘how can I squeeze as much equity as possible? How can I give them terms that maybe aren’t favorable because I’ll benefit in the short term?’

“Other states around us are legalizing, so the captive audience in Massachusetts won’t be the same,” she went on, “and that doesn’t bring out the best in people when they don’t view competition as healthy and an opportunity to get better.”

 

Seeking Solutions

Proponents of true social equity in cannabis are working toward a more equitable industry, however. Earlier this month, the Block — an organization that aims to support black and Latino cannabis professionals in Massachusetts — held the last of three networking mixers at White Lion Brewery in downtown Springfield. About 80 people attended, including a CCC commissioner.

In addition to efforts around business development, resources, and connections for its members, the Block is also developing options for members to gain capital, such as minority-owned investment firms, crowdsourcing, and more traditional, institutional backing.

“Plenty was discussed. It was a really good evening overall,” Shubrick said. “Social equity here in Massachusetts is well-intentioned, but logistically, it has opportunities to become more meaningful so we see more people opening doors who have gone through the program.”

She stressed that she’s fortunate to be entering this business backed by people — her family foremost — with her best interest at heart, and she’s passionate about using her business to lift up the only city she considered for this business.

“I want to hire folks from the community who can benefit from this industry, not just because they were impacted by the war on drugs, but also because Springfield should be benefiting from these jobs.”

That passion, she noted, will be shared by ‘budtenders’ who understand the plant and can educate customers on the store’s products, many of them created by local manufacturers that are also smaller companies, many owned by women, veterans, and people of color.

“We’re being intentional about our partnerships and helping customers understand why we’re partnering with them,” she said. “So it’s more of an experience and less of a transaction.”

Certainly, opening a cannabis retail shop — and, again, it’s a long process, one that’s not over yet — has been quite the experience for the Shubrick family.

“Not everything that is faced can be changed, but nothing can be changed until it is faced,” wrote James Baldwin, a quotation Payton calls her favorite. Indeed, she’s facing the challenging realities of cannabis entrepreneurship — with a mind to change things for the better for those who come after.

 

Joseph Bednar can be reached at [email protected]

Law

Examining PFML

Paid family medical leave is now the law in Massachusetts. And while most all employers know that, they may not know all the provisions and eligibility rules for this important piece of legislation. They need to know, because failure to abide by all those provisions may be costly, in more ways than one.

By Katharine Shove, Esq.

 

Back in 2018, Gov. Charlie Baker signed the Massachusetts Paid Family and Medical Leave program (PFML) into law. That legislation has now taken effect, and many employers have questions about exactly how the law works and to whom it applies.

Beginning Jan. 1, 2021, most eligible employees who work in Massachusetts are entitled to paid, job-protected time off from work to manage a serious health condition of their own; to bond with a child following the child’s birth, adoption, or foster placement; or to care for a family member suffering from a serious health condition.

Katharine Shove, Esq

Katharine Shove, Esq

“The PFML law has strict notice requirements. Employers must provide written notice of the PFML program to all employees within 30 days of the employee’s start date.”

The PFML program is run by the state’s Department of Family and Medical Leave, providing income replacement benefits to eligible employees. PFML benefits are funded by a payroll contribution deducted from employees’ wages. Under the PFML law, employers were required to begin such contributions on Oct. 1, 2019.

 

 

Who Is Eligible?

Leave under the PFML program applies to most W-2 employees in Massachusetts, regardless of whether they are full-time, part-time, or seasonal. Unlike the federal Family and Medical Leave Act (FMLA), the Massachusetts PFML law says an employee is not required to work for a minimum length of time in order to be eligible for leave under the PFML law. However, an employee must meet the minimum-threshold earning requirements in order to be eligible for leave under the law.

 

How Many Weeks of Leave Are Available?

The PFML law requires employers to provide eligible employees up to 26 weeks of leave in a benefit year. Beginning Jan. 1, 2021, eligible employees may be entitled to up to 20 weeks of paid leave to manage their own serious health condition. Eligible employees may also receive up to 12 weeks of paid leave to bond with a child who is newly born, adopted, or placed in foster care, and up to 26 weeks to care for a family member in the Armed Forces.

On July 1, 2021, employees will be able to receive up to 12 weeks to care for a family member with a serious health condition. Under the Massachusetts PFML law, a family member could be an employee’s spouse, domestic partner, child, parent, sibling, grandparent, parent of a spouse, or parent of a domestic partner.

In the aggregate, eligible employees may not receive more than 26 weeks of paid leave in a benefit year, even if they have more than one family member who may need care.

 

Requirement of Written Notice to Employees

The PFML law has strict notice requirements. Employers must provide written notice of the PFML program to all employees within 30 days of the employee’s start date. Such notice must include information about the benefits under the PFML program, contribution rates, and job protections under the law. The notice to employees must also include an opportunity for an individual to either acknowledge or decline receipt. In addition to written notice, employers must display posters (issued or approved by the Massachusetts Department of Family and Medical Leave) that explain the benefits available to eligible employees under the PFML law.

 

Application Process

Employees must inform their employers of their need to take leave under the law at least 30 days before the start of the leave, and before filing an application for leave with the state. Where reasons beyond an employee’s control prevent them from giving such advance notice, they must inform their employer as soon as is practical. It is then the employee’s responsibility to apply for leave through the Department of Family and Medical Leave, and the department will make the decision as to whether the leave is approved or denied. Once the department receives the employee’s application, the department will request information from the employer relative to the employee’s job status.

 

Important Considerations for Employers

It is illegal for an employer to discriminate or retaliate against an employee for exercising any right to which he or she is entitled under the law, including the right to request PFML leave. To this end, the PFML law has a strict anti-retaliation provision. If an employer takes adverse action against an employee during the employee’s leave, or within six months after their return to work, there is a presumption that the employer retaliated against the employee for exercising his or her rights under the PFML law.

It is then the employer’s burden to prove there was some independent and justifiable reason for taking the adverse employment action. Adverse employment action can include termination of employment, disciplinary action, or reduction in status, pay, or benefits.

The PFML law runs concurrently with other applicable state and federal leave laws, such as the federal FMLA and the Massachusetts Parental Leave Act. Similar to the federal FMLA, a Massachusetts employee who returns to work after taking leave under PFML law must be returned to same or similar position as he or she had prior to their leave.

If an employee files a lawsuit against his or her employer for violation of the PFML law and the employer is found to be in violation of the PFML law, numerous remedies are available to the employee. These remedies include reinstatement of the employee to the same or similar position, three times the employee’s lost wages and benefits, and the employee’s attorney’s fees incurred in bringing the action.

 

Can Employers Opt Out of the Program?

Some Massachusetts employers can opt out of the PFML program and apply for an exemption from paying PFML contributions if they purchase a private plan with benefits that are as generous as the state’s plan, and which provide the same protections.

 

Get Assistance with Making Policy

The PFML rollout presents a great deal of new information to navigate both for employees and employers. A qualified attorney will be able to assist with interpretation of the PFML, amending current leave policies, and practical matters of doing business in this new benefit environment. For those with questions about the Massachusetts PFML program, the best protection is to seek guidance from an experienced employment-law attorney.

 

Attorney Katharine Shove is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. She works on matters of employment law involving discrimination and retaliation, wage-and-hour laws, and workplace policies and compliance; (413) 781-0560; [email protected]

Law

Knick-knack Knockouts

By Valerie Vignaux, Esq.

The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money. In my experience, the highest level of emotional warfare is reserved for tangible, personal property, or the ‘stuff’ that mom and dad, or grandma and grandpa, leave behind in the house.

The $7 porcelain ballerina that sat on the mantel for 50 years, the carbon-steel chef’s knife in the kitchen, costume jewelry, a crocheted Kleenex holder, photo albums, even the washing machine, if you can believe it — these are the objects that can send otherwise well-behaved, loving, and gentle family members to opposite corners of the boxing ring to steel themselves for a fight. And fight they do.

“Not me, and not my family,” we all say. But it can happen to the best of us, and the conflict has the potential to do serious damage to a family already grieving the loss of a loved one. Adult siblings revert to traits and behaviors not exhibited since ages 6 to 12. Beloved in-laws who were once an integral part of the family are now interlopers who deserve nothing. And only after mom is gone do we learn that she seems to have promised her cuckoo clock to all four of her children. (Pro tip: none of you should take the cuckoo clock. Your own families will thank you for letting that one go.)

How do we prevent such consternation at a time when we should be coming together in our shared sadness? A list. A simple, old-fashioned list. I call such a list a will memorandum, and Massachusetts General Laws recognizes such a “separate writing identifying [the] devise of certain types of tangible property.”

One of the most appealing aspects of the will memorandum is that this list can be updated, changed, thrown out, and begun anew at any time, without having to change the will itself. In fact, a properly written and executed last will and testament document typically provides that the author (the testator or testatrix) may leave such a memo, listing specific items for specific people.

“The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money.”

For any object of significant monetary value — jewelry, works of art, vehicles, and rare books are all such examples — I recommend providing for distribution directly in the will or trust document, as opposed to a separate memorandum. Similarly, a will memorandum is not an appropriate place to include gifts of money or real estate. But for all those personal belongings that have more emotional than dollar value, such a list is perfect.

Some of my clients have also placed notes on the backs or bottoms of objects around the house, stating who is to receive it upon the client’s death. This works, but I prefer a list that is dated and signed and kept with the client’s copy of his or her will. It is helpful, too, if I, as the client’s estate-planning attorney, have a copy in my file.

How does one start writing a will memorandum? Ask your family members what they want. Understandably, many people are not eager to have these conversations, but it is a gift to those you leave behind to prepare for your passing, and a gift to prevent discord in the family.

Want to achieve the next level of preparedness? Start giving possessions away before you die. If you know that your niece would enjoy your bamboo fishing pole, give it to her now so you can see her smile, hear her thank you, and forestall any arguments about it later. Further, giving away some of your possessions now will reduce the burden on those you leave behind to clean out your residence.

Take a look around your home. Is there decluttering that could be done now? (For almost all of us, the answer is assuredly yes). Start making a list of items that you can part with now, and ask your family and friends if they’re interested in any of them. By starting the process during your life, you are lessening the burden you might otherwise leave your loved ones.

‘But I’m only 40 (or 50 or 60),” you say. You’re not too young to start. Do yourself and your family members a favor and start making that list. Every one of us has at least a few things that would be meaningful to another. If you don’t have children, consider your siblings, nieces, nephews, and friends.

One last thing: although it can feel like tempting fate, please be assured that making a will memorandum (or having a will prepared, for that matter) will not cause your death. It will not court the agents of your demise. It will be an exercise of control over the uncontrollable. It will actually make you feel better, not worse. And it will make things markedly easier for those loved ones you leave behind.

 

Valerie Vignaux is an attorney with Bacon Wilson, P.C., and a member of the firm’s estate-planning and elder-law team. She assists clients with all manner of estate planning and administration, including probate, and provides representation for guardianship and conservatorship matters. She received the Partner in Care Award from Linda Manor in 2017 and served on the board of directors for Highland Valley Elder Services; (413) 584-1287; [email protected]

LEGOLAND New York Resort, opening July 4, 2020 in the Hudson Valley (60 miles north of NYC), is heading to Massachusetts from Friday, February 14- Monday, February 17 for a roadshow at the Holyoke Mall. Fun for the whole family, the roadshow will include LEGOLAND characters, a simulated Dragon Coaster ride vehicle, LEGO building activities with Master Model Builders, a large-scale LEGO panda and zebra, and Driving School cars. Upon its summer grand opening, the 150-acre theme park will include seven themed lands and 50 rides, shows and attractions catered to families with kids ages 2-12.

Law

What to Expect When…

By John Gannon, Esq.

My wife and I recently welcomed our first child into the world. We are over the moon in love with our daughter and excited to see where this amazing journey will take us.

John S. Gannon

John S. Gannon

As an employment attorney, this process got me thinking about the topic of parental leave. That’s the legal term for providing job-protected time off from work to employees so they can bond with a newborn or newly adopted child.

Massachusetts state law requires almost all businesses to provide some job-protected leave for the birth or adoption of their child, and the federal Family and Medical Leave Act (FMLA) obligates employers with 50 or more employees to provide additional time off and protections to new parents. Although at first glance these laws may seem easy to administer, there are plenty of traps for those who do not have a deep understanding of how parental leave needs to be administered. Here are a few things employers should be aware of when an employee requests and takes parental leave.

What Does Your Policy Say?

Hopefully, you have a policy that addresses parental leave. If not, it’s time to get one on the books. Even if you have a policy, it’s never a bad idea to be make sure the language is up to date and consistent with state and federal laws governing time off to bond with a child. For example, the Massachusetts Parental Leave Act (MPLA) requires employers with six or more employees to provide eight weeks of unpaid leave to full-time employees for the purpose of giving birth or for the placement of a child for adoption.

If you have more than six employees, you need to have a policy and practice that addresses parental leave. Notably, up until a few years ago, this law was commonly referred to as the Massachusetts Maternity Leave Law, because the language of the statute provided leave protections for female employees only. The law was amended a few years ago to expand parental-leave protections to employees in Massachusetts of all genders.

If your policy refers to maternity leave instead of parental leave, it’s time to update your handbook as several employment laws have probably been added or changed since your last review.

Intersection of the FMLA

Employers covered by the FMLA have additional obligations that go beyond the requirements of state-mandated parental leave. For starters, under the FMLA, eligible employees are entitled to take up to 12 work weeks of FMLA leave in a 12-month period for a number of different reasons, including the birth of a child and to bond with a newborn or newly adopted child.

Both mothers and fathers have the right to take FMLA leave to bond with a child. Importantly, when an employee takes time under the FMLA to bond with a child, the eight weeks of state-mandated MPLA runs concurrently. This means that an employee with 12 weeks of available FMLA is entitled to 12 total weeks of parental leave, as the MPLA is used at the same time as the FMLA is used. However, questions arise when employees use FMLA for a reason unrelated to the birth or adoption of their child.

For instance, suppose an employee used 12 weeks of FMLA earlier this year to care for a sick parent. This month, the employee approaches you requesting leave to care for a child who is expected next month. That employee would no longer be entitled to 12 weeks of FMLA to care for the newborn, but would still be entitled to the eight weeks of MPLA under state law.

Leave Employees on Leave Alone

They call it leave from work for a reason. Employers need to resist the urge to contact employees on leave with work-related questions, especially if the leave is unpaid.

A call or two about something basic, such as the location of a file or document on the system, is probably fine. However, requesting attendance at meetings or on phone conferences will cross the line, as will the assignment of projects or other tasks. Not only are you taking parents away from a special and important time in their lives, but you are also potentially creating a situation where you are unlawfully interfering with an employee’s right to take time off under the FMLA or MPLA.

Plus, if the employee is taking unpaid parental leave, which is typically the case, you will need to be sure that the employee is compensated for any work performed during parental leave, including answering calls or responding to e-mails. This can be tough to account for, so the best practice is to let employees on parental leave enjoy their time off without work-related distractions.

Final Thoughts

I learned firsthand that parental leave was a special time for me and my newborn. Employers need to openly encourage employees to take all available parental leave, and should consider offering benefits that go beyond those required by state and federal law.

The U.S. Department of Labor reported in a policy brief on parental leave that longer leaves promote better child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace.

A generous parental-leave policy is also a fantastic recruiting and retention tool, as it sends a message that the business values its workforce and is committed to bettering employee work-life balance.

John Gannon is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He 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]

Law

Date with Destiny

By Timothy M. Netkovick, Esq. and Daniel C. Carr, Esq.

Timothy M. Netkovick

Timothy M. Netkovick

Daniel C. Carr

Daniel C. Carr

As everyone knows, paid family medical leave (PFML) is coming to Massachusetts on Jan. 1, 2021. To that end, the Department of Family and Medical Leave recently released its final regulations that will govern PFML.

The final regulations provide much-needed clarity on some aspects of PFML, while other aspects remain vague.

Prior to the final regulations being rolled out, one of the most common questions was whether PFML would apply to employers who have places of business in locations other than Massachusetts. The final regulations make clear that the definition of an employee in the Commonwealth of Massachusetts will be very broad. The regulations state that an employee will be eligible for PFML leave if the service provided by the employee is entirely within the Commonwealth or the service is performed both within and outside the Commonwealth, but the service performed outside the Commonwealth is incidental to the individual’s service within the Commonwealth.

An employee is also eligible for PFML if the service is not localized in any state, but some part of the employee’s service is performed in the Commonwealth and (1) the individual’s base of operations is in the Commonwealth, or (2) if there is no base of operations, then the place from which such service is directed or controlled is within the Commonwealth, or (3) the individual’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in the Commonwealth.

Therefore, even employers who do not have a physical place of business in Massachusetts, but who may have salespeople in Massachusetts, will want to review the PFML regulations with their employment counsel to determine any potential impacts to their business.

“Even employers who do not have a physical place of business in Massachusetts, but who may have salespeople in Massachusetts, will want to review the PFML regulations with their employment counsel.”

Once an employee begins PFML leave, an employer cannot require an employee to use other forms of paid time off (PTO) prior to PFML leave. However, an employee can choose to use accrued PTO provided by their employer instead of PFML. If an employee chooses to use accrued PTO, the employee is required to follow the employer’s notice and certification processes related to the use of PTO.

If an employee is going to use accrued PTO, employers are required to inform employees that the use of accrued PTO will run concurrently with the leave period provided by PFML. It will be important for employers to track the use of accrued PTO, as they will also be required to report the use of accrued PTO by employees or covered individuals upon request by the Department of Family Medical Leave.

Employers have the ability to establish their own private PFML plan instead of participating in the state administration process. If an employer is going to utilize a private PFML plan, the plan must confer all the same or better benefits, including rights and protections, as those provided to employees under PFML, and may not cost employees more than they would be charged under the state plan administered by the department. A private plan will also need to be approved by the Department of Family Medical Leave before it is implemented.

While the clear intent of the PFML regulations is to line up with the Family and Medical Leave Act (FMLA) as much as possible, there are also several key areas of difference.

The first noticeable difference is that PFML applies to every employer, regardless of size. Furthermore, as covered employers are aware, under the FMLA, an individual is entitled to leave if they work for 1,250 hours within the previous 12-month period. That 12-month period can be a calendar year or rolling period. PFML contains no such service requirement or minimum hours worked.

Furthermore, an employee is eligible for 20 weeks of leave for their own serious health condition under PFML as opposed to 12 weeks under the FMLA.

It is clear that questions still remain regarding the implementation of PFML. It is also clear that PFML and FMLA will not perfectly align. Employers will therefore want to consult with their employment counsel as they continue to prepare for PFML.

Timothy M. Netkovick and Daniel C. Carr are attorneys with Royal, P.C.; [email protected], [email protected]; (413) 586-2288

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