Massachusetts Issues Proposed Amendments to Paid Family and Medical Leave Regulations

The latest update in the rollout of paid family and medical leave in Massachusetts is proposed amendments to regulations issued under the Paid Family Medical Leave Act (“Act”), M.G.L. c. 175M. The Act entitles workers to up to 20 weeks of job-protected medical leave starting January 1, 2021 and up to 12 weeks of job-protected family leave starting July 1, 2021. The regulations were finalized last year and went into effect on July 1, 2019. The Department of Family and Medical Leave (“Department”) released proposed amendments to the regulations on May 8, 2020 and May 14, 2020.

The Department is accepting written comments on these changes and will hold a public hearing before finalizing them. A virtual hearing is scheduled for June 11, 2020 via WebEx. If social distancing restrictions permit, in-person hearings may be held in Springfield on June 11, 2020 and Boston on June 12, 2020. Anyone interested in attending these hearings should check the Department’s website for updates.

Some of the proposed changes and clarifications are:

  • Internal Appeals Process for Private Plans. As a condition for an exemption, a private plan must provide for an internal appeals process before employees can exercise their right to appeal to the Department. Employees must have at least 10 days following receipt of a denial to appeal, and extensions must be given if circumstances beyond their control prevent a timely appeal. Notice must be given to employees of their rights to appeal to both the private plan and Department.
  • Clarifications on Private Plan Exemptions. Employers cannot seek an exemption for only part of their workforce; the entire workforce must be covered under the plan. Employers may, however, seek an exemption for only medial leave benefits, only family leave benefits, or both. Private plans must calculate the weekly benefit amount based on earnings at the time of an application for benefits. If approved, employers will be exempt from both remitting contributions and filing quarterly reports. Exempt employers must notify the Department of any dissolutions, acquisitions, or mergers within 60 days.
  • Narrowing of Retaliatory Presumption. The regulations currently provide for a presumption of retaliation if an employer implements any “negative change” in a worker’s employment in the six months following his or her leave or return to work. The following will not give rise to this presumption under the proposed amendments: (1) “trivial” or “subjectively perceived inconveniences”; and (2) notification to the Department of a bona fide belief that the employee has committed fraud in connection with an application for benefits. The proposed amendments also state that an employer’s application of a “pre-existing employment rule or policy” will be sufficient to overcome the presumption
  • Employers May Apply for Benefits. The Department may “allow” an employer to apply for benefits on behalf of an employee. The employer must be “approved” by the Department and agree to abide by all application requirements and timelines.
  • Proof of Employer Notice. The Department will not accept any application for benefits that does not include proof that the employee provided the required notice to the employer – i.e., 30 days before the start of the leave, or as soon as practicable if a delay was beyond the employee’s control.
  • Substitution of Employer-Provided Leave. Employees will not receive benefits for a period of time in which accrued paid leave provided by the employer was used.
  • Reductions of Benefits. Benefits will be reduced by any benefits received through a private plan and any wages received from other employers or self-employment (in addition to other sources under the regulations). Benefits may also be reduced if the employee has any tax or child support obligations.
  • Intermittent Leave. This type of leave must be taken in 15-minute intervals.

For more information on paid family and medical leave in Massachusetts, see our prior posts on the regulations, guidance, and other issues. Note that, although tax and other deadlines have been extended in light of COVID-19 and the governor’s stay-at-home advisory, the deadlines for PFML compliance have not been extended. Contributions must still be remitted and reports must be filed for each calendar quarter on or before the last day of the month following the quarter’s close.

Employers with questions about the Act and how they should proceed should contact one of Conn Kavanaugh’s experienced employment lawyers.

CATHERINE M. DIVITA

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