As 2018 draws to a close, Massachusetts employers should start to plan for the new Massachusetts Paid Family Medical Leave law, which will begin to be implemented, in stages, starting in July 2019. This law will cause sweeping changes.
Under the Paid Family Medical Leave law, Massachusetts employees, and in some cases, non-employees and former employees, will be entitled to receive, on an annual basis:
For employers who are subject to the federal Family and Medical Leave Act (“FMLA”), many of the provisions of the new law will sound familiar. As under the FMLA, leave applies to time off for the employee’s own serious health condition and to time off in order to care for a family member with a serious health condition. The term “serious health condition” has the same definition as under the federal FMLA. In addition to covering conditions requiring in-patient stay in a medical facility, it applies to conditions requiring “continuing treatment” by a health care provider. The “continuing treatment” prong is broad and is expected to cover chronic conditions and conditions such as pregnancy, as well as conditions resulting in a short-term period of incapacity when combined with ongoing treatment by a healthcare provider.
In addition, and also consistent with FMLA provisions, family leave may also be used to bond with a child in connection with childbirth, adoption, or foster care placement, as well as for certain leaves associated with a family member’s military service. Under the FMLA, and the new Massachusetts law, leave to care for family members who were injured while performing military service is protected for 26 weeks.
The implementation of the paid leave provisions is delayed until 2021, but employers will be required to start making financial contributions to support the paid leave program starting on July 1, 2019. The law allows employers to deduct part of the required contributions from each employee’s wages. Employers with fewer than 25 employees do not have to pay the employer share of the cost. The initial contributions are set at 0.63 % of each employee’s wages.
The new law is modelled on the federal FMLA — but with some significant differences, including the following:
Overall, there are significant differences between the FMLA and the Massachusetts law, which greatly expand entitlement to leave and the amount of available leave. The law will pose significant challenges for employers, particularly where an employee has a chronic health condition requiring a significant amount of time off each year.
What employers should be doing in 2019 to prepare for these changes: While the actual leave provisions do not go into effect until 2021, employers should be taking the following steps in the coming year: Employers should be on the lookout for draft regulations, to be issued by March 31, 2019. Employers who want to comment on the draft regulations will need to comply with the applicable comment period. Employers should pay special attention to the ways that the draft regulations address the use of intermittent leave, the grounds to deny reinstatement, and the establishment and handling of employee fraud. These areas have been problematic for employers trying to comply with the federal FMLA.
Employers will need to obtain notices of rights after they are prepared by the Department of Family and Medical Leave. Employers are required to post these notices and to provide copies of the notices to new employees and, in some cases, to self-employed individuals providing contracted services.
Employers with 25 or more employees will need to start making the required financial contributions as of July 2019.
Employers should review the final regulations, which are expected to be in place by July 1, 2019. Employers should then start to consider changes to their personnel policies and practices to comply with the law and regulations. For ease of administration, employers with FMLA policies should consider revising their FMLA policies to make the policies consistent with the new Massachusetts law. In making changes, employers will need to comply with FMLA requirements, such as providing at least 60 days’ notice of any change to the methodology for determining benefit year.
Overall, the Massachusetts Paid Family Medical Leave law is one of several significant changes affecting Massachusetts employers. Massachusetts employers should review their policies and practices to make sure that they are complying with this new law and also with the other new laws that went into effect over the past year, including those dealing with pregnancy accommodation (effective in April 1, 2018), equal pay rights (effective July 1, 2018), non-compete agreements (effective October 1, 2018), and permissible criminal history questions (effective October 13, 2018).
If you want to learn more about how the new Massachusetts Paid Family Medical Leave law will affect your personnel policies and what you need to do to prepare for it, please contact Laurie Rubin, the author of this alert, at 617-456-8020 or firstname.lastname@example.org.
A version of this alert was published by the Real Estate Bar Association online and in the March edition of their print publication, REBA News.