Employer Alert: Massachusetts Employees May Begin Taking Paid Family and Medical Leave on January 1, 2021
December 15, 2020
As most employers are aware, Massachusetts employees may begin taking some types of paid family and medical leave starting January 1.
On January 1, 2021, eligible individuals may begin taking:
Up to 12 weeks’ leave:
to bond with their child within the first 12 months after birth or adoption/foster care placement; or
due to a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces.
Up to 20 weeks’ leave for the individual’s own serious health condition that incapacitates them from work; and
Up to 26 weeks’ leave to care for a covered service member with a service-related disability or serious health condition.
On July 1, 2021, eligible individuals may begin taking up to 12 weeks’ leave to care for a family member with a serious health condition.
As described in a previous alert, eligible individuals include:
W-2 workers who work in Massachusetts, whether they are full-time, part-time, or seasonal who meet certain financial eligibility requirements (i.e., in the 12 months before filing a claim for benefits they earned at least 30 times the weekly benefit amount, totaling at least $5,100);
Certain 1099-MISC workers who work in Massachusetts. To be eligible, 1099-MISC workers must not qualify as independent contractors, and must work for an entity that uses 1099-MISC workers for more than 50% of its overall workforce (and meet the financial eligibility requirements described above);
Former employees who met the financial eligibility requirements described above at the time they were separated from their employment and who have been unemployed less than 26 weeks; and
Self-employed individuals who opt into the program and meet certain criteria.
Prior to January 1, employers and covered business entities (“CBEs”) should be sure to do the following:
1. Provide your workforce with notice of PFML rights.
Post workplace notices in a conspicuous location at all workplace premises. This notice must be in English and any other language that is the primary language of five or more workers. Notices prepared by the Department of Family and Medical Leave (the “Department”) are available here.
Provide written notice of PFML rights to all current employees and for new hires, within 30 days of the employee’s start date. This notice must be provided, or approved, by the Department. These notices are available here.
Provide 1099-MISC workers with written notice of their PFML rights when entering into a contract for the worker’s services. For 1099-MISC workers who were previously notified that they were covered by PFML but who are no longer covered under the revised definition of 1099-MISC workers, the Department has issued a 1099-MISC acknowledgment reversal form to provide to affected individuals.
Obtain from each employee or 1099-MISC contractor a written statement acknowledging receipt of the notice or a statement indicating their refusal to acknowledge the notice.
2. Review your leave policies for compliance with PFML.
Employers and CBEs should conduct a final review of their leave policies, in particular any parental or medical leave policies, to ensure they are consistent with their PFML obligations.
Employers subject to the federal Family and Medical Leave Act (FMLA) should also review their FMLA policies for consistency with PFML, in particular how the benefit year is determined under both laws. For PFML, the benefit year is the consecutive 52-week period beginning the Sunday before the first day of the individual’s leave. In contrast, the FMLA provides employers with four ways of calculating the 12-month period in which employees may take FMLA leave:
Option 1 (the calendar year): January 1 - December 31.
Option 2 (any fixed 12-months): for example, a fiscal year, a year starting on an employee’s anniversary date, or a 12-month period required by state law.
Option 3 (12-month period measured forward): 12-month period measured forward from the first date an employee takes FMLA leave.
Option 4 (“rolling” 12-month period measured backward): 12-month period measured backward from the date an employee uses any FMLA leave.
For administrative ease, employers might consider adopting Option 3, which is the closest to how the PFML benefit year is determined (and avoids certain pitfalls under Options 1 and 2). N.B. When changing the calculation method, employers must give employees 60 days’ advance notice.
3. Document employee performance issues.
Employers may not retaliate against a worker for exercising PFML rights. Employers will be presumed to have engaged in retaliation if they initiate any negative change in the seniority, status, benefits, pay, or other terms or conditions of employment within six months of an employee’s leave or return from leave.
This presumption can only be rebutted by clear and convincing evidence that: (1) the employer’s action was not retaliatory, (2) there was sufficient independent justification for the action, and (3) the employer would have otherwise acted at the same time regardless of the employee’s leave. By documenting any performance issues before employees begin to take leave, employers will be better able to show that any later adverse employment action is not in retaliation for an employee’s exercise of PFML rights.
4. If necessary, renew your private plan exemption.
Employers and CBEs may apply for an exemption from PFML contributions if they offer paid family and/or medical leave benefits to covered individuals through a private plan. If approved, private plan exemptions must be renewed regularly (exemptions are effective for up to one year, although the Department may establish a shorter or greater term of approval where it deems necessary). If an employer or CBE fails to maintain or renew a private plan exemption approved prior to January 1, 2021, it will be responsible for retroactive PFML contributions.
For assistance with these developing issues and to ensure compliance with Massachusetts’ paid family and medical leave requirements, please contact Margaret H. Paget or Allyson E. Kurker at Kurker Paget LLC.