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Archive for May, 2019

Paid Family and Medical Leave is on the Horizon

Posted on: May 14th, 2019 by admin

Although it was ushered in quietly, the new Massachusetts Paid Family and Medical Leave law (“PFML”), M.G.L. c. 175M, will represent a monumental change for both employers and workers. The statute will entitle qualifying workers to as many of 26 weeks of protected, paid medical and family leave. The PFML will apply not only to employees of small businesses, but in some cases, to “1099” contractors and self-employed individuals as well.

Leave Entitlements

Beginning January 1, 2021, covered workers may be entitled to (1) up to 20 weeks of paid medical leave in a benefit year if they have a serious health condition that incapacitates them from work; and (2) up to 12 weeks of paid family leave in a benefit year related to the birth, adoption, or foster care placement of a child, or because of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces; and (3) up to 26 weeks of paid family leave in a benefit year to care for a family member who is a covered service member with a serious health condition.

Further, beginning July 1, 2012, covered individuals may be entitled to up to 12 weeks of paid family leave to care for a family member with a serious health condition.

Employers must continue to make their contributions to employee health insurance during leave.

In total, leave is restricted to an aggregate 26 weeks in a benefit year.

Departures from the FMLA

The Massachusetts PFML differs from its federal counterpart, the Family and Medical Leave Act (“FMLA”), in several key aspects:

  • Leave under the PFML is paid, based on the employee’s average weekly earnings, with a maximum benefit of $850 per week, paid through the Commonwealth in a fashion similar to unemployment.

 

  • Workers’ who meet the PFML’s “financial eligibility test” (based on previous earnings) may be entitled to leave even early in their employment, in contrast to the FMLA which applies only to employees who have worked for their employer for at least 12 months, and for no less than 1,250 hours.

 

  • “Family members” is expansively defined under the PFML, as a spouse, domestic partner, child, parent or parent of a spouse or domestic partner; a person who stood in loco parentis to the covered individual when the covered individual was a minor child; or a grandchild, grandparent or sibling.

 

  • Entitlement to PMFL is determined by the Massachusetts Department of Family and Medical Leave, rather than by employers as under the FMLA.

 

  • Benefit years under the PFML are counted from the date a worker first takes leave.

Funding

The program will be funded through contributions from employees and employers. The program applies to employers of all sizes, with few exemptions. In some instances, it applies even to 1099 workers. Self-employed persons may choose to participate.

Starting July 1, 2019, employers must begin making deductions from employees’ wages to cover the anticipated benefits. Employers with 25 or more employees must contribute as well. Contributions will be remitted quarterly, and the Commonwealth will adjust benefit contributions annually.

Under narrow circumstances, an employer may attain an exemption from paying contributions. If an employer offers employees paid family leave, medical leave, or both, with benefits that are at least as generous as those provided under the law, the Commonwealth may grant an exemption.

Right to Reinstatement

Employers may not retaliate against employees who take leave under the PFML. Generally, employers must reinstate employees to their previous position or to an equal position, with the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave. The reinstatement requires does not apply to “1099” contractors.

In court, a worker who was subject to an “adverse action” (e.g., termination, pay cut, change in seniority status) within six months of returning from leave is entitled to a presumption of retaliation, that can only be overcome is the employer makes a showing by clear and convincing evidence that its motive was not retaliatory.

Enforcement

Workers who believe they have been retaliated against in violation of the PFML may bring a civil action in Superior Court within three (3) years. Prevailing workers may be entitled to reinstatement, traditional tort remedies (e.g., pain and suffering); back pay and benefits, with the possibility of treble damages; and attorneys’ fees and costs.