Part 1: MA PFML Regulatory Updates and Preparation Tips

While Massachusetts employers need to start preparing for Paid Family & Medical Leave (PFML) now, employers across the country would be remiss to ignore PFML regulations.  Nine states have paid family and/or medical leave laws in place now and 25 more have paid leave bills that are in discussion.  This isn’t a passing trend: these are HR updates to pay attention to today—and in the future.  Below is a guide to Massachusetts PFML from the HR services experts at MP.  Because this topic is so essential and so detailed, this article will be a two-part series.  The first portion will cover MA PFML basics.  The second part will cover updates for 2020, as well as tips to prepare so that your workplace is in compliance and mitigates the risk of any MA PFML issues, fines, or lawsuits.   

General features of PFML in Massachusetts  

Though this review is specific to Massachusetts, it’s still relevant to HR professionals around the country.  This legislation will be similar to legislation that HR departments in at least 34 states should know.  In Massachusetts, employers and workers have already been paying MA PFML contributions since October 2019.  However, the law’s biggest impact will hit in the next few months.  On January 1, 2021, most workers in the state will be eligible for up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave.  This is a huge departure from previously, when absences usually went unpaid.  These leaves will be funded by the contributions made since last October and are managed by the Department of Family and Medical Leave (DFML).  

There will be two types of paid leave.  Note that if an employee needs to take paid leave for both medical and family/bonding leave, they can take any combination for up to 26 weeks in a benefit year.  Companies should make sure their strategic HR planning includes provisions for situations like this, so workflow and productivity can continue as normal.  It will be critical to make plans that don’t place the burden too heavily on team members still in the workplace.  If there is poor planning, employee engagement and morale might be heavily impacted as workers are overloaded. 

• Bonding/family care leave: As of January 1, 2021, workers will be eligible for up to 12 weeks of family leave to bond with a child.  As of July 1, 2021, they’ll be able to take up to 12 weeks to care for a family member with a serious health condition.  It’s worth noting that the definition of ‘family member’ here is expanded further than FMLA, including other relations like siblings. Additionally, as of January 1, 2021 workers can take up to 26 weeks of family leave to care for a covered service member.   

• Medical leave: As of January 1, 2021, workers will be able to take up to 20 weeks of medical leave for their own serious health condition.  

MA PFML contributions 

While all workers will need to make contributions for MA PFMLA, not all employers will.  Every January 1^st, employers will need to reassess and determine their status for this purpose.  The status will remain the same until January 1^st of the next year and cannot be changed.  Small employers, those who had an average of 24 or less employees during the previous calendar year, won’t pay employer MA PFML contributions.  Larger employers, meanwhile, those who had an average of 25+ employees in the last calendar year, are responsible for paying employer MA PFML contributions. 

Posting and notice requirements: 

Employers in Massachusetts should have been conspicuously posting notices about MA PFMLA since July 1, 2019.  This posting needs to be in English, as well as each language other than English that five or more employees speak as their primary language.  (The caveat is if the DFML does not offer a version of a poster in the language required.)  On or before September 30, 2019, employers should have been providing information to new employees within 30 days of their employment.  This requires a signature from the employee acknowledging other receipt of the information, or a signed statement indicating the worker’s refusal to sign the acknowledgement.  Employers are responsible for saving these forms and keeping them on hand should the DFML request them or they become necessary in legal proceedings (like a lawsuit).   

Anti-retaliation protections 

Now more than ever, it’s imperative for employers to be documenting disciplinary steps.  Firing or taking disciplinary action on an employee within six months of their leave may be considered retaliation. More specifically, the law protects employees who have taken MA PFMLA from firing or disciplinary action if they have: 

• Filed a complaint 
• Instituted or caused to be instituted a proceeding under or related to the law 
• Testified or are about to testify in an inquiry or proceeding 
• Given or are about to give information connected to an inquiry or proceeding related to the law 

The law prohibits retaliation against an employee: 

• At any time during the family medical leave they take 
• During the six-month period following the employee’s leave or reinstatement 
• Within the six months of the termination of proceedings in which the employee participates 

The Application Process 

The DFMLA will be providing more guidance and potentially more forms in the future.  In the interim, these are the requirements for the application process.   

Employer obligations 

Once an application is in process, DFML will request the information below from employers.  They have 10 business days to reply with the information.  

• Wage and/or earnings info 
• A complete and current job description 
• The worker’s full-time or part-time schedule and their weekly hours worked 
• Documentation of any prior requests the employer approved 
• The amount of paid leave the worker has already taken during the current benefit year 
• The employer’s paid leave policies 
• Documentation of any leave approved by the employer in the last 12 months 
• A listing of other wage replacement benefits, such as a short-term disability plan 
• Any other relevant information or records 

Employee obligations 

• Notify the employer of the need for leave and follow the employer’s procedure for notice.  Notification should include the type and duration of leave, as well as certification supporting the need for leave (and any other relevant information). 
• Retain proof that notice was given to the employer. 
• Submit an application at least 30 days in advance of the requested leave, but no more than 60 days in advance of it.  The exception is that workers must file their applications as soon as practicable if they’re unable to meet the filing deadlines because of circumstances beyond their ‘reasonable control.’  For instance, this might apply when a worker has a serious medical condition like a heart attack, which may happen without warning.  
• When planning to take leave for medical treatment, the employee must consult with the employer in advance of their application. 
  
• Medical leave certification for a serious health condition: All applicants will need a certification from a healthcare provider for their application.  It should state that the employee has a serious health condition, the date when it began, give a probable duration, and certify that they are incapacitated from work due this health condition.  Lastly, the medical certification must provide what kind of leave the employee needs, either continuous or intermittent leave.  For instance, workers with cancer may need time off intermittently for treatment, but not a continuous leave of absence.  

• To care for a family member: Proof must be provided by the healthcare provider with the name, address, and information that proves the identity of the family member.  This certification needs to list the worker’s relationship to the employee, a statement that they are needed to care for this family member, and the frequency and duration of which they’ll need to do so.  Lastly, the certification must include the date when the health condition began and a probable duration. 
  
• Bonding leave: Workers can take bonding leave for the birth of a child, adoption, or foster care placement.  They must supply the child’s birth certificate or a statement from a healthcare provider stating the child’s birth date.  If it is an adoption or foster care placement, they must provide a certificate from the adoption or foster care agency confirming the date of placement.  Note that the leave may only include dates within 12 months of birth or placement.  (In the case of multiple births, no more than 12 weeks of leave are available in a benefit year for this purpose.) 
• After an application is filed, the employer will be notified within five business days and DFML will facilitate next steps.  
• Note that a covered individual with multiple employers isn’t required to take leave from each employer.  For instance, if they have a part-time side job, and they can easily continue it during their leave, the worker can do so.  

Fitness for duty 

Before a worker returns from their leave, an employer may request certification for fitness to return to duty.  This policy must be applied uniformly.  This request can only be related to the particular health condition that caused the employee’s need for leave.  Certification must be from a healthcare provider, saying that the employee can resume their job, particularly the essential functions of it.  Thus, the employer must provide the employee with a list of the essential functions of their job that they can, in turn, show to their healthcare provider.  

Paid Family and Medical Leave Private Plan Exemptions 

Employers may request an exemption from collecting, remitting, and paying MA PFML contributions through the public options if they want to use a private plan instead.  To do so, they can apply using their MassTaxConnect account.  Applications are taken on a rolling basis (and once approved, will begin the next quarter). To qualify: 

• The plan must have benefits greater than, or equal to, the benefits provided by the MA PFML law. It must also offer the same rights and protections 
• All employees must have access to this, not just those who are highly paid, specific departments, etc. 
• The plan can be self-insured or provided through an insurer 
• Partial exemptions will be allowed from the MA PFML’s Family Leave Program, Medical Leave Program, or both. 

If employers decide to switch from a private plan to the public option, they should leave themselves plenty of time to do so.  They will need to:  

• Report prior wages and qualified earnings to the DFML for the four quarters immediately preceding the terminal date of the exemption 
• Comply with specified notice obligations 
• Coordinate collecting and remitting contributions to pay into the state fund 

Click here for Part 2 of MA PFML Updates