Proposed Revisions to Massachusetts’ Paid Family and Medical Leave Regulations

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Proposed Revisions to Massachusetts’ Paid Family and Medical Leave Regulations

6/1/20

The Massachusetts Department of Family and Medical Leave (“DFML”) recently issued to the public proposed revisions for Massachusetts’ paid family and medical leave program. In its release, DFML issued a markup of proposed revisions to the regulations governing the program. While the proposed revisions are not yet enacted, reviewing the proposed changes is helpful for employers and employees to see where the paid benefit is likely headed. The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m. Prior to this hearing, interested parties are invited to submit comments directly to DFML. The link to submit comments directly to DFML is here.

The Paid Family and Medical Leave Law (“PFML”) allows covered individuals to use paid leave for several reasons including (i) bonding with a child after birth or adoption,(ii) relating to necessities for a family member’s active duty or call to duty in the Armed forces, (iii) caring for a family member who is a covered service member or (iv) caring for the individual’s own health condition. Beginning on July 1, 2021, eligible individuals will also be able to use paid leave to care for a family member’s serious health condition. Employers in Massachusetts are presently subject to a payroll tax as a means to fund the PFML, though benefits are not expected to become available until January 1, 2021.

The DFML’s proposed regulations are subject to further change pursuant to the required public hearings and comment period. Still, due to the impending impact on employers and employees when enacted, examining some of the significant proposed revisions is worthwhile:

Definitions: the DFML has included new definitions for several key terms and updated the definitions of terms already defined in the prior regulations such as what constitutes accrued leave, when an application for benefits can be considered to be complete and the duration of an employee’s leave which is protected under the PFML.
Optional Coverage for Otherwise Ineligible Employers: the proposed changes provide an avenue for employers who would otherwise not be covered by the law (such as municipalities, political subdivisions, housing authorities, or charter schools) to become a covered employer for a minimum term of one year.
Private Plan Exemptions: the marked-up regulations go into greater detail on how covered employers may request an exemption because they offer paid family and/or medical leave to employees through a private plan.
Application for Benefits: the DFML proposes new notice requirements for employees applying for benefits under the PFML, including new notice requirements stating employees must give at least 30 days’ notice to their employer of the anticipated start date of the paid leave and notice must be given prior to an application to the DFML.
Applying for Benefits Verification: the proposed changes include a new requirement that employees using paid leave on an intermittent basis must verify the hours of leave taken with the DFML in order to continue receiving benefits.
Weekly Benefit Amount: the proposed changes state the weekly benefit amount will be calculated based on an employee’s average weekly wage at the time the employee files a request for paid leave. The weekly benefit amount will not change during the term of the approved leave period.
Substitution of Employer-provided Paid Leave: the DFML proposes to change the regulations to provide that employees choosing to use accrued paid leave provided by their employers rather than benefits under the PFML will have their accrued paid leave run concurrently with PFML leave.
Employer Reimbursement: the proposed revisions state if employers make payments to a covered employee during a period of PFML equal to or greater than the weekly benefit amount, the employer shall be reimbursed out of any benefits due to the covered individual or to become due from the Trust Fund by the DFML.
Intermittent and Reduced Schedule Leave: DFML proposes additional guidance for keeping track of intermittent leave. Employers must provide the DFML with wages or qualified earnings paid to employees approved for intermittent leave individual on a monthly basis, or at another interval approved by the DFML.
Retaliation: the proposed revisions update the rebuttable presumption of retaliation to state a negative change shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work. In addition, an employer who notifies the DFML based on a bona fide belief the employee has committed fraud in connection with the employee’s application for benefits shall not give rise to an action of retaliation or presumption.

The above changes are subject to further change and revision. This blog is an overview of the major proposed changes to date of the current regulations. We advise employers to read through the markup submitted by the DFML for information on all proposed changes and updates. The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m. Prior to this hearing, DFML invites interested parties to submit comments on the proposed revisions directly to DFML. The link to submit comments directly to DFML is here.

If you have questions or would like more information, please contact Janet Barringer at jbarringer@fmglaw.com or Zinnia Khan zkhan@fmglaw.com.

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