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.
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]