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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

“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]

Date with Destiny

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

Timothy M. Netkovick

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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