Beginning on January 1, 2021, Massachusetts employees will be eligible for up to 26 weeks per year of paid leave under the new Massachusetts Paid Family and Medical Leave law (MPFML). Employees may take paid leave for their own serious health conditions, to bond with a child, to manage family affairs while a family member is on active duty, and to care for a family member who is a covered service member. In July, they will be able to take paid leave to care for a family member with a serious health condition.
With 2021 rapidly approaching, employers should take immediate steps to make sure they are complying with the MPFML, including implementing leave policies, updating handbooks, and submitting private plan exemption applications.
The MPFML is both a benefits law and a leave law, as it provides employees with paid leave and job protection during leave. The duration of leave available depends on the qualifying reason for leave:
Under the law, a “Family Member” is a spouse, domestic partner, child, parent, grandchild, grandparent or sibling; the parent of a spouse or domestic partner; and guardian of the employee. Serious health conditions include pregnancy, chronic conditions, long-term conditions that require ongoing treatment, and other conditions requiring multiple treatments. Employees are expected to provide at least 30 days’ notice of their need for leave. However, if leave is not foreseeable, employees must provide notice as soon as is practicable.
In some circumstances, employees will be subject to a seven-day waiting period before receiving paid leave. This waiting period applies to each application for paid leave, except for medical leave during pregnancy or recovery from childbirth, if supported by documentation by a healthcare provider that the medical leave will be immediately followed by family leave. In that circumstance, no waiting period is required.
An employee may use different types of paid leave during a benefit year, but an employee’s maximum period of leave is 26 weeks in a benefit year. A “benefit year” is a rolling period of 52 weeks beginning on the Sunday before the employee’s leave begins. This benefit year may differ from that under the federal Family and Medical Leave Act (FMLA). Employers should note that if they elect to change the calculation of their FMLA benefit year to align with the MPFML, they must provide advance notice of any change.
Employees may take intermittent leave or a reduced leave schedule under certain circumstances. For employees taking leave for their own serious health conditions, intermittent leave must be medically necessary. For employees taking leave to bond with a child, intermittent leave requires the mutual agreement of the employee and the employer.
The amount of benefits is based on an employee’s average weekly wage, and in 2021, the maximum amount of MPFML benefits is $850 per week. The state Department of Family and Medical Leave will reevaluate the average weekly wage and MPFML benefits each October. Leave benefits are funded through contributions by employees and employers. Employers are responsible for collecting and paying contributions on behalf of their employees, and a state-controlled trust fund will hold the funds, unless the employer receives a private plan exemption (discussed below).
The MPFML contains strict job protection and anti-retaliation provisions. Following leave, employees must be restored to positions with the same status, pay, benefits, length-of-service credit, and seniority. MPFML protected leave cannot affect employees’ rights to accrue vacation time, sick leave, bonuses, or advancement. However, periods of MPFML protected leave do not need to be treated as time worked for purposes of benefit accruals or vesting. During periods of leave, employers and employees should continue making their typical contributions to employees’ health insurance premiums.
Because MPFML creates protected leave, employers may not discriminate or retaliate against employees for exercising their rights to leave. Employees may pursue legal claims against employers for discrimination or retaliation under the law. Notably, the MPFML creates a presumption of retaliation for any “negative change” occurring within six months after any employee’s return from leave. A negative change includes any change to seniority, status, benefits, pay, or other term or condition of employment. Under the regulations, a negative change does not include trivial changes or minor inconveniences.
Instead of contributing to the MPFML trust, employers may apply for an exemption if they offer leave through a private plan. Employers can submit applications for exemptions on the Department of Revenue’s MassTaxConnect. Exemptions will only be approved if the benefits provided are greater than or equal to those provided by the MPFML and the cost to the employees does not exceed the cost under the MPFML. Employers may self-insure for MPFML benefits or provide a plan from an insurer. The Department of Insurance maintains an updated list of MPFML insurance plans that meet the Department of Family and Medical Leave standards. Employers who have not yet sought an exemption but plan to do so must apply for an exemption by the end of the year.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Boston
Lisa H. Barton
Sean D. Callaghan
Gabriel S. Gladstone
Siobhan E. Mee
Douglas T. Schwarz