Accurate Job Descriptions Needed to Comply With Massachusetts Paid Leave Law
Updated and accurate job descriptions serve many important functions for an employer, including – but certainly not limited to – establishing essential functions of a job for purposes of the Americans with Disabilities Act and its state law counterparts; determining whether a reasonable accommodation is available for a disabled employee under those same statutes; evaluating whether a particular position is exempt or non-exempt under the Fair Labor Standards Act; and managing performance. As of January 1, 2021, updated and accurate job descriptions are also important for purposes of complying with the Massachusetts Paid Family and Medical Leave Law (“PFML”).
As of January 1, 2021, most of the benefits established by PFML become available to employees who work in Massachusetts. For employers who participate in the state-run program (i.e., those who are not wholly insured by a private plan), updated and accurate job descriptions will play an important role in complying with the procedural requirements of Department of Family and Medical Leave (the “Department”).
mployees who want to apply for PFML leave must do the following at least 30 days in advance of the anticipated start of leave (unless a delay is beyond the employee’s control, in which case the employee should do so as soon as is practicable): (1) notify the employer of the need for leave and the anticipated start date; and (2) apply for leave with the Department of Family and Medical leave online here.
Within five business days after receiving an application, the Department will notify the employer of the employee’s application and request that the employer provide certain information to the Department within ten business days. Among the information required by the Department is a description of the employee’s position.
In addition, when PFML leave is related to an employee’s own serious health condition, the employer may require a fitness-for-duty certification as a condition of the employee’s return to work, provided that the employer has a uniformly-applied policy or practice for all similarly-situated employees. If an employer chooses to implement this requirement, it must provide the employee with a job description and notice of this requirement within ten business days of the notice of approval of leave from the Department.
Given the roles that job descriptions have in the procedures for applying for and receiving PFML benefits, it is advisable that employers revisit those descriptions to ensure that any information they will be providing to the Department or an employee on PFML leave is accurate and relevant.
If you have any questions about the Massachusetts PFML or need assistance evaluating and updated your organizations job descriptions, Beck Reed Riden LLP’s employment attorneys are available to assist.
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Starting January 1, 2021, most of the benefits established by the Massachusetts Paid Family and Medical Leave Law (“PFML”) become available to employees who work in the state. Specifically, as of that date, an eligible employee taking leave for any of the following reasons can receive pay during leave, which is offered by the state but funded through payroll deductions that have been in place since October 2019:
Employees must provide notice to their employer before applying for PFML benefits. Absent proof of such notice, the Massachusetts Department of Family and Medical Leave, which administers the benefit program, may deny PFML benefits. Unless impracticable due to a delay for reasons outside of the employee’s control, 30 calendar days’ notice before commencement of the leave is required.
or larger employers who are also covered by the federal 
On May 14, 2020, the Massachusetts Department of Family and Medical Leave released proposed 
The proposed regulations also seek to clarify issues concerning private plan exemptions. Specifically, they provide that private plan coverage must be provided to all “[a]ll employees and covered contract workers and former employees” in order to seek exemption. They also list a number of requirements for a private plan to obtain approval by the Department, including that an employer must inform covered individuals of their rights under the private plan as well as their rights under PFML, along with an appeals process. This allows employees to appeal before the private plan provider within ten calendar days (or more if the employee can provide sufficient reason for the delay). The employee can appeal before the Department after exhausting the private plan provider’s appeal process.
The proposed amended regulations are also intended to take the sting out of the presumption of retaliation for negative employment actions taken in the six-month period following an individual’s PFML leave. The revised regulations clarify that a negative change does not include “trivial or subjectively perceived inconveniences.” In addition, it will not be considered retaliation if the employer informs the Department of its bona fide belief that the individual has committed fraud in applying for PFML benefits. The proposed regulations retain language from previous incarnations that provides that the presumption of retaliation will be rebutted only by “clear and convincing evidence” that the employment action was not retaliatory.
Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from