by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
January 25, 2019
You know you are a compliance geek when the bright spot of your week is the release of new leave law regulations! Yes, I’m guilty as charged – but I know I’m not alone. Here’s the scoop:
On January 23 the Massachusetts Department of Family and Medical Leave (DFML) released draft regulations that start to flesh out the how-to’s of the Massachusetts Paid Family & Medical Leave law (PFML). The regulations can be accessed from a link on the DFML home page.
| We know you are eager to learn all about MA PFML, the new draft regulations, and what they mean for your business. That’s why we will be holding webinars soon – presently targeted for February 27 and 28. For more information and an invitation to the webinars, watch this blog, contact your sales or account manager, or send us an email at [email protected].
|
Kudos to the DFML for getting this document out somewhat early. The MA law doesn’t require draft regulations until March 31 and final regs until July 1, 2019 – very late in the game, considering employer and employee contributions start on July 1. However, the DFML is cognizant of the challenges employers will face getting ready for this new leave and benefits law so, truly, the sooner the better. The Department also expects to finalize the regulations prior to that July 1 deadline.
Be aware, however, this version is very likely to change before being finalized. For that reason, I am not going into much detail here about what the draft regulations contain. The document itself states in a header on every page, “DRAFT – REGULATIONS UNDER DEVELOPMENT – FOR THE PURPOSE OF EARLY PUBLIC INPUT ONLY – 1/23/19.”
To this end, the DFML has scheduled 7 public listening sessions to gather comments on the draft regulations. The sessions run from January 30 through February 19 at various locations around the state. Dates and locations are available on the DFML home page.
At Matrix we are actively involved in keeping current on MA PFML developments, but we are also helping to shape these and similar regulations. I lead a small group that has periodic conferences directly with the Massachusetts Undersecretary of Labor/General Counsel for the Executive Office of Labor and Workforce Development, who is leading the development of the MA regulations. In addition I will attend the January 30 listening session in Boston while other Matrix representatives will attend other sessions around the state.
DRAFT REGULATIONS
Much of the content of the draft regulations is a repeat of provisions of the PFML law itself. There are some details about claims documentation, time limits, and employer reporting obligations. Much more is needed to define how to apply for and operate a private plan and how to administer claims. I will be vocal in at the listening session and in my meetings with Commonwealth personnel.
KEY PROVISIONS OF MA PFML
High level, here are the key provisions of the MA PFML law:
Private plans. Employers can meet their MA PFML obligations through a public plan administered by the Commonwealth or through a private plan for medical and/or family leave that offers benefits at least as beneficial to employees as the state plan. The law also specifically recognizes that employers can obtain private insurance to cover their benefit obligations under a private plan.
| Matrix can help! We anticipate developing a model private plan to meet employers’ MA PFML obligations and assisting in administration once benefits go into effect starting January 1, 2021. Many details are yet to be developed by the Commonwealth for such plans, so stay tuned.
|
Covered employers. All employees of any size must comply with the law, although an employer with fewer than 25 employees in the Commonwealth is not required to pay the employer portion of the premiums.
Eligible employees. An employee is eligible for leave benefits if he or she has been paid wages in the “base period” amounting to at least 30 times the weekly benefit rate. The base period is the last 4 completed calendar quarters immediately preceding the first day of an individual’s benefit year. Coverage includes benefits for former employees within 26 weeks of separation and independent contractors if the employee or contractor meets the eligibility requirement.
Funding. The benefits will be funded at an initial rate of 0.63% of an employee’s average weekly wage (to be adjusted annually):
- The premium for medical leave (employee’s own serious health condition)
will be paid 40% by the employee and 60% by the employer - The employee pays 100% of the premium for family leave
- The premium has not yet been apportioned between medical leave and family leave
Premium contributions. Employers and employees must begin making premium contributions July 1, 2019. Employers can, of course, choose not to withhold premium from employee paychecks and instead pay the employee share themselves.
Benefit amount. Weekly benefits are paid based on a percentage of an employee’s wages:
- Wages equal to or less than 50% of the state average weekly wage (SAWW) will be paid at 80%
- Any portion of wages in excess of 50% of the SAWW will be paid at 50%
- Initially, benefits will be capped at $850 per week. Thereafter, benefits are capped at 64% of the SAWW,
to be adjusted annually.
Paid leave benefits start dates. Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021. Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.
Leave reasons. Leave reasons mirror those of the federal Family and Medical Leave Act (FMLA), which will run concurrently if both laws are applicable:
- Employee’s serious health condition
- Family member’s serious health condition
- Bonding with a new child
- Family military exigencies
- Care for a seriously ill or injured service member
One difference employers will notice is that the list of family members for whom employees can take leave includes not just the employee’s parent, child, or spouse like FMLA, but also domestic partners, parents-in-law, grandparents, grandchildren, and siblings. Any MA PFML taken to care for these additional family members will not count toward usage of the employee’s FMLA entitlement.
Leave duration. Leave durations in a “benefit year” are up to:
- 20 weeks for medical leave (an employee’s own serious health condition)
- 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
- 26 weeks to care for a seriously ill or injured service member
- An aggregate maximum of 26 weeks in a benefit year for all leave reasons
Benefit year. All leave entitlements and usage are measured forward 52 weeks from the Sunday preceding the first day of the employee’s covered leave. (Rolling forward, get it?)
Still geeking out? Matrix held national webinars last year to help introduce and explain the Massachusetts PFML law. If you can’t wait until the next round, you can do all your preparation here and be at the very front of the class!
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].