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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