Everything Employers Need to Know about Massachusetts Paid Family - - PowerPoint PPT Presentation

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Everything Employers Need to Know about Massachusetts Paid Family and Medical Leave

Joshua D. Nadreau jnadreau@fisherphillips.com

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PAID LEAVE LAWS ARE #TRENDING

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CONTEXT

• Compromise of 3 Ballot Initiatives
• Increase minimum wage to $15 by 2022
• Reduce Sales Tax from 6.25% to 5%
• More Generous Paid FMLA
• Rushed Through at End of Legislative

Session

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COVERED EMPLOYERS

• “Any Employing Unit”
• No Employer Size Requirement
• Size Only Impacts Required Contributions
• Commonwealth Employees Covered
• Municipalities/Districts/Political

Subdivisions Exempted

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COVERED INDIVIDUALS

• Employees who Satisfy Financial

Eligibility Test

• Self-Employed Individual who Elects

Coverage

• Covered Contract Worker
• Former Employee (<26 weeks from

separation)

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FINANCIAL ELIGIBILITY TEST – (EMPLOYEES)

• Mirrors Eligibility for Unemployment
• Wages ≥ 30 x Weekly Benefit Rate in Base

Period

• Base Period
• Last Four Calendar Quarters Preceding Benefit

Year

• Benefit Year
• 52 Weeks Beginning on the Sunday Preceding the

Claim for Benefits

• All Employment with AN Employer in

Massachusetts

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COVERED CONTRACT WORKERS – (INDEP. CONTRACTORS)

• Self-employed individual that a

covered business entity:

• Reports payment on 1099-MISC
• Required to Remit Contributions
• Covered Business Entity
• Business/Trade with >50% of its

workforce paid via 1099-MISC

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CONTRIBUTIONS

• 0.63% of Wages
• Employers (25+ Employees)
• Medical Leave:

60% Employer Contribution 40% Employee Contribution

• Family Leave:

100% Employee Contribution

• Employers (<25 Employees)
• No Required Contributions
• Contributions Capped at SSA Base Limit
• Currently $132,900

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CONTRIBUTIONS 25+ EMPLOYEES

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CONTRIBUTIONS <25 EMPLOYEES

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EXAMPLES

https://calculator.digital.mass.gov/pfml/contribution/

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WEEKLY BENEFIT

• 7 Day Grace Period
• 80% of “Average Weekly Wage” ≤

50% of “State Weekly Wage” +

• 50% of “Average Weekly Wage” ≥

50% of “State Weekly Wage”

• State Weekly Wage = $1,338.05
• Maximum Weekly Benefit = $850
• Adjusted Annually to Equal 64% of State

Weekly Wage

Average Weekly Wage <50% State Weekly Wage >50% State Weekly Wage Benefit Amount $440.00 $440.00 $0.00 $352.00 $500.00 $500.00 $0.00 $400.00 $550.00 $550.00 $0.00 $440.00 $600.00 $600.00 $0.00 $480.00 $700.00 $669.03 $30.98 $550.71 $1,000.00 $669.03 $330.98 $700.71 $1,250.00 $669.03 $580.98 $825.71 $1,300.00 $669.03 $630.98 $850.00 $1,338.05 $669.03 $669.03 $850.00 $2,000.00 $669.03 $1,330.98 $850.00

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MEDICAL LEAVE

• Leave taken for covered individual’s

serious health condition

• Serious Health Condition
• Illness, injury, impairment, or

physical/mental condition

• Inpatient care OR continuing treatment by

health care provider

• Health Care Provider Broadly Defined

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FAMILY LEAVE

• Leave taken for family member’s

serious health condition

• Bonding Time within First 12 Months
• Birth
• Adoption
• Foster Care Placement
• Covered Servicemember & Qualifying

Exigency Leave

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COVERED FAMILIAL RELATIONSHIPS - FMLA

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COVERED FAMILIAL RELATIONSHIPS - PFMLA

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EMPLOYEE ENTITLEMENTS

• Beginning January 1, 2021:
• Up to 20 weeks to care for own “serious health condition”
• Up to 12 weeks to bond with a child within first 12 months of birth or

placement or adoption/foster placement

• Up to 12 weeks for “any qualifying exigency” related to call to active duty in

the Armed Forces

• Up to 26 weeks to care for a family member who is a covered servicemember
• Beginning July 1, 2021:
• Up to 12 weeks to care for a family member with a “serious health condition”

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INTERMITTENT & AGGREGATE LEAVE

• Intermittent Leave Allowed:
• Bonding Leave ONLY By Agreement
• Serious Health Condition when

Medically Necessary

• Qualifying Exigency Re: Duty in

Armed Forces

• Total Aggregate Leave:
• Up to total of 26 weeks/Benefit Year

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INTERACTION WITH EXISTING LEAVE POLICIES

• Cannot Force Exhaustion of Sick/Vacation/Personal Time Prior to or During Leave
• Runs Concurrent with FMLA and Mass. Parental Leave Act
• Must Comply with Any Policy/Collective Bargaining Agreement Providing Greater or Additional Leave
• If Existing Paid Leave Policy Pays Higher Rate, Employer May Count Time Off Against

Employee Statutory Allotment

• Employer Must Provide Written Notice That this Will Occur

1 2 3 4 5 6 7 8 9 10 11 12

• Mass. Parental Leave Law

Up to 8 weeks unpaid, job protected leave FMLA Up to 12 weeks unpaid, job protected leave JOB PROTECTION WAGE REPLACEMENT Paid Family Leave Up to 12 weeks paid

Weeks

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EMPLOYEE NOTICE REQUIREMENTS

• Yet Another Poster
• 30 Days’ Written Notice
• Written Acknowledgement

Required

• $50 penalty/Employee 1st Offense
• $300/Employee Subsequent Offense
• July 1, 2019 Effective Date

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EMPLOYEE NOTICE REQUIREMENTS

XYZ Corp.

100

XYZ Corp. 200 State Street Boston, MA 02109 12-3456789

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EMPLOYEE USE OF LEAVE - NOTICE

• 30 days’ notice of anticipated start date,

length of leave, and expected date return

• “As soon as practicable” if the delay

unforeseeable

• Notice requirement is waived if

employer fails to provide the employee with proper PFML notice.

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EMPLOYEE USE OF LEAVE - PROCESSING

• Claim filed within 90 days of Start of Leave
• Proper Certification Required
• Information Submitted to DFMLA is Confidential
• Benefit eligibility waived if applicant willfully makes a

materially false statement

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EMPLOYEE USE OF LEAVE - ADMINISTRATION

• Employees Notified within 14 days of Receipt of Claim
• Employers notified within 5 Business Days after Claim

Filed

• Appeal Process in Cases of Denial of Benefits
• Judicial Review in Limited Instances

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EMPLOYEE USE OF LEAVE – BENEFITS

• Accrual of Benefits Does Not Continue

During Leave

• Employer must continue to provide and

contribute to employee health insurance benefits at the same level

• PFML “shall not” affect employees rights to

accrue upon reinstatement:

• Vacation Time, Sick Leave, Bonuses,

Advancement, Seniority, Length of Service Credit

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RETURN FROM LEAVE

• Employee “shall be” restored to

previous position or equivalent position

• Layoff Exception
• Retaliation Prohibited
• Use of PFML Benefits
• Filing of Complaint re: PFML

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PRESUMPTION OF RETALIATION

• The Law Presumes Retaliation for any

Negative Change to:

• Status, Seniority, Benefits, Pay, Other Terms or

Conditions of Employment

• 6 Month Period Following Use of Leave
• Presumption rebuttable only with “clear and

convincing evidence” that:

• Employer’s action was not retaliation;
• Sufficient independent justification for taking

such action; and

• Would have taken such action, regardless of

the employee’s use of leave

[A] degree of belief greater than the usually imposed burden

• f

proof by a preponderance

• f

the evidence but less than the burden of proof beyond a reasonable doubt.

Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975)

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REMEDIES

• Private Right of Action
• 3 year statute of limitations
• If Liable the Court May:
• Issue Temporary Restraining Order
• Order Reinstatement
• Order payment of 3 times lost wages,

benefits, “and other remuneration and the interest thereon”

• Require Employer Pay Attorneys’ Fees & Costs

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PRIVATE PLAN OPTION

• Dep’t of Family & Medical Leave Approval
• Bond Requirement
• Sept. 20 Deadline
• Same Rights & Protections as Statute
• Greater or Equal Payments
• No Additional Restrictions
• Cannot Cost Employees More

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KEY DATES

• June 30, 2019
• Poster and Written Notice to All Employees
• Final Regulations Published
• July 1, 2019
• Contribution Collections Begin
• Sept. 20, 2019
• Private Plan Exemption Application Deadline
• Jan. 1, 2021
• Parental/Exigency & Medical Leave (Own Serious Health Condition)
• July 1, 2021
• Family Leave for Serious Health Condition of Family Member

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THANK YOU

Any Questions?

Joshua D. Nadreau Fisher Phillips LLP 200 State Street, 7th Floor Boston, MA 02109 jnadreau@fisherphillips.com