PFML | Beck Reed Riden LLP

10Dec2020

Accurate Job Descriptions Needed to Comply With Massachusetts Paid Leave Law

December 10, 2020

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.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

20Oct2020

Massachusetts Paid Family and Medical Leave Benefits Start January 1, 2021

October 20, 2020

Steve RIden

FMLA, Paid Family and Medical Leave Law, PFML Employment Law, News, Resources

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:

Management of the employee’s own serious health condition
Management of family affairs while a family member is on active duty overseas
Care of a family member who is a covered service member
Bonding with a child during the first 12 months after the child’s birth, adoption, or foster care placement

Paid family leave benefits to care for a family member with a serious health condition will be available starting July 1, 2021. Intermittent leave is generally allowed for all PFML reasons except for child bonding. An employer may, however, agree to intermittent leave for child bonding.

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.

If the application for PFML benefits is approved, there is a seven-day waiting period before benefits are payable, which will count against the total available period of leave in the benefit year. This waiting period applies for each application for benefits, with the exception of medical leave during pregnancy or recovery from childbirth if supported by documentation from a healthcare provider that this medical leave is immediately followed by family leave. In that case, the seven-day waiting period for the family leave is not required.

Employers should keep in mind that the length of PFML leave available in an employee’s benefit year varies depending on the reason for such leave. An eligible employee may receive up to 20 weeks of paid leave for their own serious health condition and up to 26 weeks to care for a family member who is a covered service member. Paid leaves for other reasons under the PFML are capped at 12 weeks.

or larger employers who are also covered by the federal Family and Medical Leave Act (“FMLA”), there is an important wrinkle that requires attention in order to ensure consistency between your FMLA policy and leave entitlements under the PFML.

Under the FMLA, eligible employees who work for covered employers are entitled to unpaid, job-protected leave in a defined 12-month period. There are four options from which an employer may choose to establish the applicable 12-month period – including a rolling 12-month period measured backward from the date an employee uses any FMLA leave. This method, however, is not permissible under the PMFL because it provides that the benefit year is the 52-week period beginning on the Sunday immediately preceding the PFML leave.

Accordingly, Massachusetts employers using the rolling backward method to determine the 12-month period under the FMLA may want to consider changing to a different calculation method for administrative ease, such as the 12-month period measured forward from the first date an employee takes FMLA leave. However, any employer that elects to change to a different method of calculating the 12-month period must give all employees at least 60 days’ advance notice of the change, and the change must occur in a way that permits employees to retain the full benefit of their leave entitlement under the method that affords the greatest benefit to the employee.

Employees 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.

If you have any questions about the intersection of the FMLA with the Massachusetts PFML, or any other questions regarding the PFML in general, Beck Reed Riden LLP’s employment attorneys are available to assist.

21Jun2020

Massachusetts Paid Family and Medical Leave Law: Proposed Revised Regulations and Public Hearing

June 21, 2020

Steve RIden

Paid Family Medical Leave, PFML Employment Law, News

On May 14, 2020, the Massachusetts Department of Family and Medical Leave released proposed amendments to the regulations for the Paid Family and Medical Leave (PFML) Law.

The Department posted the amendments on its website and held a virtual hearing on June 11, 2020 to receive public comments. Written comments were also accepted for a 24-hour period following the virtual hearing. Given that the benefits provided by the PFML are available to employees beginning in only seven months’ time and that the Department previously issued “final” regulations in July 2019, it is notable that these regulations remain in flux.

Modified Definitions

The proposed amendments modify and expand upon definitions contained in the PFML. While some definitions seek to clarify previously vague terms, such as “active duty” and “good cause,” others alter the substance and procedures associated with the PFML.

Perhaps the most significant proposed clarification to the definitions is that an employer’s workforce would not include self-employed individuals or covered contract workers (those filing IRS Form 1099-MISC). The proposals define covered contract workers as persons who (a) perform services as an individual entity in Massachusetts, (b) reside in Massachusetts, and (c) are not classified as an independent contractor pursuant to the unemployment statute (M.G.L. c. 151A, § 2).

Private Plan Exemptions

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.

Under the proposed regulations, if an exemption is approved by the Department, an employer may be exempt from the requirement to make contributions for medical leave coverage, family leave coverage, or both. The exemption will be effective for up to one year and may be renewed annually upon subsequent approval.

Applying for PFML

The proposed amendments also seek to clarify the process individuals must follow when applying for PFML benefits. Covered individuals may file an application with the Department no more than 60 days before the anticipated start of family or medical leave.

Individuals must provide the following information to the Department:

Proof that the employer has been notified of the intended leave
Full name of the covered individual
Anticipated start date of the leave
Anticipated length of the leave
Type of leave, and
Expected return date.

The notification to the employer must occur at least 30 days before the anticipated start of family or medical leave. If the individual cannot provide at least 30 days’ notice, the individual must provide notice “as soon as practicable.”

Modified Benefits

The proposed amended regulations calculate benefits based on an individual’s weekly wages at the time of the application. Benefits will be reduced by any amount received through an approved private plan or any other wages received during the duration of the leave. Additionally, weekly benefits may be reduced if the covered individual has outstanding tax or child support obligations – a modification deemed to be a “punitive garnishment” by a commenter during the hearing.

Job Protection and Consequences

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.

Comments at the June 11, 2020 Public Hearing

The public hearing included overwhelming criticism towards measuring intermittent leave in 15-minute increments, highlighting the administrative complications of doing so. Additionally, there was feedback regarding the requirement of social security number(s) in the application process due to its immigration implications. Commenters also pointed out the exclusion of contract workers, along with inconsistencies between definitions in the PMFL and other Massachusetts legislation.

Presumably, the Department is considering comments made at the public hearing and those submitted in writing, though it is not clear at this time whether further revisions are forthcoming. We will continue to provide updates as the PFML continues to evolve.

Thank you to Puneet Dhaliwal for her contributions to this article, which were significant.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.