Paid Family Archives - BusinessWest

Start the New Year by Implementing Best Employment Practices

By Contributor January 6, 2021

Ringing Out the Old

By Amy B. Royal, Esq.

Most of us are happy to leave 2020 behind.

It was a year wrought with struggles both at home and in the workplace. Many companies faced closures, near-closures, reduced capacities, and reduced business all because of the impact of the COVID-19 global pandemic. Companies were also hit with several new, COVID-related laws, such as paid emergency leaves of absence, furthering the burdens they were facing during an already-difficult time.

It isn’t surprising that we are ready to ring in and embrace this new year. And, with the new year here, v is a good time to shift gears, reboot and regroup, and return to building better business practices. With that said, the new year provides an opportunity to proactively take a look at your company’s current employment-law practices to ensure compliance with the myriad evolving employment laws affecting your company.

Paid Family and Medical Leave and Minimum Wage

Two noteworthy laws take effect in Massachusetts this January: the Paid Family and Medical Leave (PFML) law and the revised minimum-wage law.

PFML law takes effect in the Bay State this January. While employer obligations under PFML commenced on Oct. 1, 2019, as of Jan. 1, 2021, employees can begin to apply for and receive paid leave for most medical and family leaves of absence. The remaining leave provisions will take effect on July 1, 2021. Under PFML, employees can take paid leaves for their own serious health condition, to bond with a newborn child, to bond with a child after adoption or foster-care placement, to care for a family member with a serious health condition, or to manage family affairs when a family member is on active duty in the armed forces.

All private Massachusetts employers are covered under the law regardless of their size. Leave entitlements range from 12 weeks to 26 weeks depending on the type of leave needed, and employees can take leave intermittently, if medically necessary, for medical leave for an employee’s own serious health condition or take family leave to care for a covered service member or to care for a family member with a serious health condition.

Amy B. Royal

“With the new year here, it is a good time to shift gears, reboot and regroup, and return to building better business practice.”

Intermittent leave cannot be used to bond with a child. PFML and federal FMLA run concurrently. The same is true for the Massachusetts Parental Leave Act. Employees can choose to use but may not be required to use other forms of paid time off. PFML provides job protection and restoration rights akin to the federal FMLA. Employers are required to restore employees who take leave to their previous position, or to an equivalent position, with the same status, pay, benefits, length-of-service credit, and seniority as of the date of leave.

On Jan. 1, 2021, the Massachusetts minimum wage increased from $12.75 to $13.50 per hour. The service rate also increased from $4.95 to $5.55 per hour. Premium pay for Sunday retailer workers decreased. The next step in our minimum-wage rise is to $15 per hou, slated to take effect in 2023.

Proactive Employment Steps

The new year can serve as a good reminder and placeholder for reviewing and auditing your employment practices. Doing so will enable you to be strategic about that piece of your business and move toward creating a detailed and updated personnel plan going forward.

A good plan starts with an annual review of employment policies and manuals, written job descriptions, and employee-training programs to ensure that your company is compliant with state and federal laws and that your employees are properly trained in your processes and procedures.

Well-crafted employment policies are important because they communicate expectations to employees and help insulate your company from certain legal liabilities. When crafting employment policies, know that certain ones are legally required, while others are good business practice. Depending on your company’s size, required employment policies may include anti-discrimination, anti-harassment, parental leave, paid family and medical leave, and sick time. The implementation of other policies may be a good idea, such as codes of conduct, discipline and termination, workplace safety, off-duty conduct and the use of social media, drug and alcohol use and testing, use of cell phones, and use of company computer equipment and other electronic resources.

SEE: List of Law Firms

Written job descriptions are also a good practice. While not legally mandated, they can be a good tool to assess and evaluate prospective and current employees and also can reduce your company’s exposure to certain lawsuits. Accurate job descriptions that set forth the essential functions of a position can minimize liability when your company is faced with either internal requests for accommodations or external disability claims. Providing an accurate job description to an employee’s medical provider can also help determine whether an employee can perform their job with or without an accommodation or qualify for a leave of absence.

Another good business practice is employee training. Training managers and supervisors is especially important. Indeed, such trainings can help them understand company policies and their roles and responsibilities under these policies. Particularly important trainings for managers include anti-discrimination and anti-harassment, employee disabilities and recognizing requests for reasonable accommodations, and effective employee discipline and documentation.

Many employment issues that eventually evolve into litigation stem from actions or inactions of managers or supervisors. Employers should regularly conduct trainings to give these key employees the knowledge and skills required to enable them to properly handle situations as they arise.

The cost of defending expensive litigation far exceeds the investment in taking proactive, preventive steps to reduce the risk of litigation. Therefore, employers should consider conducting an internal audit at the beginning of each and every new year.

Amy B. Royal, Esq. is a litigation attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Here Are Five Things Employers Should Be Doing — Now

By Columnist May 28, 2019

Law

Paid Family and Medical Leave

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

John S. Gannon

Amelia J. Holstrom

Businesses have had almost a year to prepare for the implementation of Paid Family and Medical Leave (PFML) in Massachusetts. Still, many questions remain, and the first critical date — July 1 — is right around the corner.

Here are five things that should be at the top of your to-do list as employers in the Commonwealth prepare for PFML.

Decide How to Handle Tax Contributions

PFML is funded through mandatory payroll contributions that begin on July 1. Currently, the contribution is set at 0.63% of an employee’s eligible wages. Because PFML covers two types of leave — medical leave and family leave — the state Department of Family and Medical Leave (DFML) has attributed a portion of the contribution (82.5%) to medical leave and the remainder (17.5%) to family leave. As if that wasn’t confusing enough, employers are permitted to deduct up to 100% of the family-leave contribution and up to 40% of the medical-leave contribution from an employee’s pay. Employers with 25 or more employees are required to pay the rest.

Although employers can pass on a lot of the contribution to the employee, businesses should consider whether to pay a portion, or even all, of the employee’s portion. When doing so, employers should consider the impact on morale, whether an employee is more or less likely to use the leave if they are paying for it, and whether the employer can afford to do more.

Provide the Required Notices

Employers are required to provide notice to employees about PFML on or before June 30. Two separate notices are required — a workplace poster and a written notice distributed to each employee and, in some cases, independent contractors. The mandatory workplace poster must be posted in English and each language that is the primary language of at least five individuals in your workforce if the DFML has published a translation of the notice in that language. Posters are available on the DFML website.

“It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work.”

The written notice must be distributed to each employee in the primary language of the employee and must provide, among other things, employee and employer contribution amounts and obligations and instructions on how to file a claim for benefits. Employees must be given the opportunity, even if provided electronically, to acknowledge or decline receipt of the notice. The DFML has issued a model notice for employers to use.

Employers must get these notices out by June 30, but also within 30 days of an employee’s hire. Failure to do so subjects an employer to penalties.

Consider Private-plan Options

Employers who provide paid leave plans that are greater than or equal to the benefits required by the PFML law may apply for an exemption from making contributions by applying to the DFML. Employers can apply for an exemption to family-leave or medical-leave contributions, or both. Private-plan approvals are good for one year, and, generally, will be effective the first full quarter after the approval.

However, the DFML has made a one-time exception for the first quarter — July 1 through Sept. 30. Employers have until Sept. 20 to apply for an exemption, and any approval will be retroactive to July 1. Employers should consider whether this is a viable option for them before employees can begin taking leave on January 1, 2021.

There are benefits to doing so, but employers should consider the potential cost. If an employer chooses to self-insure its private plan, it must post a surety bond with a value of $51,000 for medical leave and $19,000 for family leave for every 25 employees. Employers may also have the option to purchase a private insurance plan that meets the requirements of the law through a Massachusetts-licensed insurance company.

Review Current Time-off and Attendance Policies

The principal regulator of frequent leaves of absence is the fact that employees are not getting paid for this time away from work, absent company provided paid time off like sick or vacation time. Once those company-provided benefits are used up, the employee is not getting a paycheck.

Naturally, this gives employees motivation to get back to work and on the payroll. Unfortunately, when Jan. 1, 2021 comes around, businesses will lose this regulator as PFML will be paid time off, up to a cap of $850 per week (and up to a whopping 26 weeks of paid time off per year).

It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work. Therefore, businesses should be reviewing their current time-off and attendance policies to determine whether changes should be made in light of this forthcoming law. Are you providing too much paid time off already? Should you develop stricter requirements surrounding absenteeism and employee call-out procedures?

The time is now for discussing these changes as modifications to leave and attendance policies take time to think through and implement.

Plan for Increased Staffing Challenges

Many businesses and organizations throughout the region are currently dealing with significant staffing difficulties due to historically low unemployment rates. This challenge is only going to increase when the leave protections of PFML kick in on Jan. 1, 2021.

We recommend that employers try to get out in front of this by having meetings and possibly forming committees tasked with planning for expected workforce shortages. Consider increasing per-diem staff as regular staffers are likely to have more time off and call-outs from work. Consult with staffing agencies to explore whether temporary staffing will be an option if (and when) employees take extended PFML. Whatever you do, don’t wait until late next year to address potential staffing problems.

Bottom Line

PFML is certainly going to be a challenge for employers to deal with, particularly smaller employers who are not already familiar with leave laws like the federal Family and Medical Leave Act. Although it may seem as though the sky is falling on employers, with proper and careful planning and guidance from experts, transitioning into the world of PFML should be reasonably manageable.

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 representing management in 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. Holstrom devotes much of her practice to defending employers in state and federal courts and before administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, compliance, and union-related matters; (413) 737-4753; [email protected]; [email protected]

Paid Family and Medical Leave Will Soon Be a Reality

By Columnist February 19, 2019

Employment

Ready or Not…

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

Paid Family and Medical Leave is on the way in Massachusetts.

In order to implement the new program, the newly created Department of Family and Medical Leave has released drafts of the regulations that will govern this new type of leave. Public listening sessions are now being held to allow members of the public to provide input on the draft regulations.

Timothy M. Netkovick

Daniel C. Carr

Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.

All employers will be covered by the new Massachusetts law. Although there are some similarities between the federal Family and Medical Leave Act (FMLA) and the new Massachusetts law, some provisions of the new Paid Family and Medical Leave will require all employers to modify elements of their current practices. For example, if your company already qualifies for federal FMLA, it will also qualify for Massachusetts Paid Family and Medical Leave.

However, you should not assume that your company will automatically be in compliance with the new law just because you already have policies and practices in place to comply with the federal FMLA. You will need to review your policies now because employers required to make contributions must begin doing so on July 1, 2019.

On Jan. 1, 2021, all employees in the Commonwealth will be eligible for Paid Family and Medical Leave. Paid leave will be funded by employee payroll contributions and required contributions from companies with an average of 25 or more employees.

If you are a seasonal business with a fluctuating workforce, how do you know if your company has an average of 25 employees for purposes of this law? The current draft regulations make it clear that the average number of employees is determined by counting the number of full-time, part-time, seasonal, and temporary employees on the payroll during each pay period and then dividing by the number of pay periods. If the resulting average is 25 or greater, your company will need to pay into the Family and Employment Security Trust.

“Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.”

In one major variation from federal FMLA, Massachusetts Paid Family and Medical Leave will be administered by the state, unless an employer applies for an exemption to use a ‘private plan’ to administer the leave themselves or through a third-party vendor. If an employer wants to utilize a private plan, the employer will need to apply, and be granted the exemption, annually.

At this point, the only requirement for a private plan is that it must provide for the same or greater benefits than the employee would have if the program was being administered by the state. The required logistics of implementing a private plan are unclear. The logistics of implementing a private plan will likely be addressed in the final regulations and advisory opinions as the 2021 start date draws closer.

In addition to paid leave, there are also several other major variations from federal FMLA law. One major variation is the amount of leave available to employees. While federal FMLA allows for a total of 12 total weeks of job-protected leave during a 12-month period regardless of the qualifying reason, the Massachusetts law differentiates between types of leave.

For instance, under the Massachusetts law, employees are allowed up to 20 weeks for an employee’s own serious health condition; up to 12 weeks to care for a family member’s serious health condition; up to 12 weeks for the birth, adoption, or foster-care placement of a child; and up to 26 weeks in order to care for a family member who is a covered service member. While an employee is out on leave, the amount of their benefit is based upon the employee’s individual rate of pay, but with a cap of 64% of the state average weekly wage. This cap will initially be $850 per week.

Employers will need to begin assessing their responsibilities under this program as well as the steps necessary to comply with these requirements. Employers that are required to make contributions to the Family and Employment Security Trust will want to start the process of deciding whether they intend to utilize a private plan, and if so, they should consult with employment counsel as they prepare their plan to insure compliance with the unique provisions of the new Massachusetts law.

Paid Family and Medical Leave will continue to be a hot-button topic for the foreseeable future. It is important for employers to continually monitor the progress of the law as it is being implemented to ensure they will be ready to continue business with minimal disruption on Jan. 1, 2021.

Timothy M. Netkovick, an attorney at Royal, P.C., has more than 15 years of litigation experience, and has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288; [email protected]

Daniel C. Carr specializes exclusively in management-side labor and employment law at Royal P.C. He has experience handling a number of labor and employment matters in a variety of courts and administrative agencies. He is also a frequent speaker on a number of legal areas such as discrimination law, employee handbook review, investigation strategies, and various employment-law topics; (413) 586-2288; [email protected]

Start the New Year by Implementing Best Employment Practices

Ringing Out the Old