The latest draft regulations for the Massachusetts Paid Family and Medical Leave law came out recently. I’ve had the privilege to be connected with Abigail O’Connell, Senior Counsel at Sun Life Financial over the past several months, and she’s been a fantastic source of information for us.
Abigail was kind enough to agree to answer some questions about the latest regulations, but all I needed to do was ask one, and she offered so many insights, there was no need for follow up. My question was simply, “The new draft regulations were recently published. What did you see that jumped out at you as different or new than the initial proposed regulations?”
Here’s Abigail’s response.
The following items are changes contained in the 3.29.19 MA PFML draft regulations that stood out to me. Please note that the regulations are not finalized, but the latest draft is informative of the director of MA PFML.
· Intermittent leave will be able to be taken in increments of one hour. It seems the state plan will track MA PFML in increments of one hour or more. Intermittent leave is a challenge to administer and a challenge for employers in regard to replacement staffing. However, intermittent leave is needed when there are flare ups or episodic conditions. Because of the language in the draft regulations, it is unclear whether or not employers in private plans may track time in smaller than one hour increments – which they may desire to do in alignment with FMLA time tracking.
o “Intermittent leave”, leave taken in separate periods of time due to a single qualifying reason, rather than for one continuous period of time, and may include leave periods from an hour or more to several weeks. Examples of intermittent leave include leave taken on an occasional basis for medical appointments or leave taken several days at a time spread over a period of months. [Section xx.02 Definitions]
· The draft regulations limit the ability to take leave for “the covered individual’s own serious health condition that incapacitates the individual from performing the essential functions of his or her job.” This does not align with the underlying MA PFML law which reads, “Medical leave shall be available to any covered individual with a serious health condition.” It would make sense that the employee be rendered unable to perform their essential job functions in order to take leave, rather than just being able to take paid leave for the existence of a serious health condition. It seems the regulations attempted to remedy the gap the law left in this area. It will be interesting to how this divergence between the law and regulations is resolved.
· There is an initial seven day unpaid waiting period during which benefits are not payable. The initial seven day waiting period for paid leave benefits will count against the total available period of leave in a benefit year.
· In regard to defining which employees are “localized” in MA, the regulations [Section xx.01(2)] borrow from the NY Paid Family Leave and provide instruction in this area.
o A covered individual shall be considered a Massachusetts covered individual with respect to all services provided within, or both within and without the commonwealth for an employer or covered business entity, if:
§ (a) the service is localized in the commonwealth. Service shall be deemed to be localized within the commonwealth if the service is performed entirely within the commonwealth, or the service is performed both within and without the commonwealth, but the service performed without the commonwealth is incidental to the individual’s service within the commonwealth; for example, is temporary or transitory in nature, or consists of isolated transactions.
§ (b) the service is not localized in any state, but some part of the service is performed in the commonwealth and (i) the individual’s base of operations is in the commonwealth or, if there is no base of operations, then the place from which such service is directed or controlled, is within the commonwealth, or (ii) the individual’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in the commonwealth.
· The regulations make clear how MA PFML will interact with MA Parental Leave and the MA Earned Sick Time Act. Leave taken under MA PFML will run concurrently with leave taken under other applicable state and federal leave laws, including but not limited to, the Commonwealth’s Parental Leave Act, the federal Family and Medical Leave Act of 1993, and the Commonwealth’s Earned Sick Time Act, when the leave is for a qualified leave reason under those acts.
· Call Outs: The drafts contain a call-out requirement. An employer may require an employee or covered individual to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. An employee or covered individual also may be required by an employer’s policy to contact a specific individual to report this information. This is good for employers and makes clear the requirement for employees to call out following usual protocol for absence but also to report the absence to the PFML administrator (whether that be the state plan or private plan).
· There is a postal requirement for an individual that lacks internet access. The group “Raise Up” and Greater Boston Legal Services were very vocal about the use of US Postal Mail in the Listening Sessions held throughout the state and should be pleased with this change.
· The draft regulations account for the use of “Fitness for Duty” as a condition to restore an employee whose leave was occasioned by their own serious health condition. Employers may have a uniformly-applied policy or practice that requires all similarly-situated employees/covered individuals (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from their health care provider that the employee or covered individual is able to resume work.
· Claimants only get 10 calendar days to appeal a denial of benefits to the Department of Family and Medical Leave. Private plan denials are also appealed to the Department of Family and Medical Leave and not to the administrator or carrier who issued the denial of benefits. The department may extend the 10-day filing period where an employee can prove circumstances beyond the employee’s control prevented the filing of a request for an appeal within the 10-day filing period.
· Job Protection: The language was changed slightly but with significant impact. An employee need only be returned to same or equivalent position and benefits. Seniority benefits do not continue to accrue during the leave.
o “Upon reinstatement, taking family or medical leave under M.G.L. c. 175M shall not affect an employee’s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length-of service credit or other employment benefits, plans or programs. Leave periods under M.G.L. c. 175M need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate. [Section xx.16 (1)]
· Presumption of retaliation: The burden of proof is on the Employer if any negative employment action is taken against the employee within 6 months of the leave.
o (3) Presumption. Any negative change in the seniority, status, employment benefits, pay, or other terms or conditions of employment of (a) an employee which occurs any time during a leave taken by an employee under M.G.L. c. 175M, or during the six month period following an employee’s leave or restoration to a position pursuant to this section, or (b) an employee who has participated in proceedings or inquiries pursuant to this section within six months of the termination of proceedings shall be presumed to be retaliation under this section. Such presumption shall be rebutted only by clear and convincing evidence that such employer’s action was not retaliation against the employee and that the employer had sufficient independent justification for taking such action and would have in fact taken such action in the same manner and at the same time the action was taken, regardless of the employee’s use of leave, restoration to a position or participation in proceedings or inquiries as described in this section.
We’ve had a lot of questions about this new law. If you have questions or would like to attend our upcoming webinar on this topic featuring Rick Szczebak, Esq. from RAS Law, P.C. on May 9 at 10:00, give us a call at (866) 724-0008 or click the link below.