Everything Employers Need to Know about Massachusetts Paid Family and Medical Leave Joshua D. Nadreau jnadreau@fisherphillips.com fisherphillips.com
P AID L EAVE L AWS ARE #T RENDING fisherphillips.com
C ONTEXT 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 fisherphillips.com
C OVERED E MPLOYERS “Any Employing Unit” No Employer Size Requirement Size Only Impacts Required Contributions Commonwealth Employees Covered Municipalities/Districts/Political Subdivisions Exempted fisherphillips.com
C OVERED I NDIVIDUALS Employees who Satisfy Financial Eligibility Test Self-Employed Individual who Elects Coverage Covered Contract Worker Former Employee (<26 weeks from separation ) fisherphillips.com
F INANCIAL E LIGIBILITY T EST – (E MPLOYEES ) 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 fisherphillips.com
C OVERED C ONTRACT W ORKERS – (I NDEP . C ONTRACTORS ) 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 fisherphillips.com
C ONTRIBUTIONS 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 fisherphillips.com
C ONTRIBUTIONS 25+ E MPLOYEES fisherphillips.com
C ONTRIBUTIONS <25 E MPLOYEES fisherphillips.com
E XAMPLES https://calculator.digital.mass.gov/pfml/contribution/ fisherphillips.com
W EEKLY B ENEFIT 7 Day Grace Period Average Weekly <50% State >50% State Benefit Wage Weekly Wage Weekly Wage Amount 80% of “Average Weekly Wage” ≤ $440.00 $440.00 $0.00 $352.00 50% of “State Weekly Wage” $500.00 $500.00 $0.00 $400.00 + $550.00 $550.00 $0.00 $440.00 50% of “Average Weekly Wage” ≥ $600.00 $600.00 $0.00 $480.00 50% of “State Weekly Wage” $700.00 $669.03 $30.98 $550.71 State Weekly Wage = $1,338.05 $1,000.00 $669.03 $330.98 $700.71 $1,250.00 $669.03 $580.98 $825.71 Maximum Weekly Benefit = $850 $1,300.00 $669.03 $630.98 $850.00 Adjusted Annually to Equal 64% of State $1,338.05 $669.03 $669.03 $850.00 Weekly Wage $2,000.00 $669.03 $1,330.98 $850.00 fisherphillips.com
M EDICAL L EAVE 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 fisherphillips.com
F AMILY L EAVE 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 fisherphillips.com
C OVERED F AMILIAL R ELATIONSHIPS - FMLA fisherphillips.com
C OVERED F AMILIAL R ELATIONSHIPS - PFMLA fisherphillips.com
E MPLOYEE E NTITLEMENTS 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” fisherphillips.com
I NTERMITTENT & A GGREGATE L EAVE 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 fisherphillips.com
I NTERACTION WITH E XISTING L EAVE P OLICIES 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 FMLA Mass. Parental Leave Law P ROTECTION Up to 12 weeks unpaid, job Up to 8 weeks unpaid, job J OB protected leave protected leave 1 2 3 4 5 6 7 8 9 10 11 12 Weeks R EPLACEMENT Paid Family Leave W AGE Up to 12 weeks paid fisherphillips.com
E MPLOYEE N OTICE R EQUIREMENTS Yet Another Poster 30 Days’ Written Notice Written Acknowledgement Required $50 penalty/Employee 1 st Offense $300/Employee Subsequent Offense July 1, 2019 Effective Date fisherphillips.com
E MPLOYEE N OTICE R EQUIREMENTS 0 XYZ Corp . 100 XYZ Corp . 200 State Street Boston, MA 02109 12-3456789 fisherphillips.com
E MPLOYEE U SE OF L EAVE - N OTICE 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. fisherphillips.com
E MPLOYEE U SE OF L EAVE - P ROCESSING 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 fisherphillips.com
E MPLOYEE U SE OF L EAVE - A DMINISTRATION 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 fisherphillips.com
E MPLOYEE U SE OF L EAVE – B ENEFITS 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 fisherphillips.com
R ETURN FROM L EAVE Employee “ shall be ” restored to previous position or equivalent position Layoff Exception Retaliation Prohibited Use of PFML Benefits Filing of Complaint re: PFML fisherphillips.com
P RESUMPTION OF R ETALIATION The Law Presumes Retaliation for any Negative Change to: [A] degree of belief greater Status, Seniority, Benefits, Pay, Other Terms or than the usually imposed Conditions of Employment burden of proof by a 6 Month Period Following Use of Leave preponderance of the Presumption rebuttable only with “clear and evidence but less than the convincing evidence” that: burden of proof beyond a reasonable doubt. Employer’s action was not retaliation; Stone v. Essex County Newspapers, Inc. , Sufficient independent justification for taking 367 Mass. 849, 871 (1975) such action; and Would have taken such action, regardless of the employee’s use of leave fisherphillips.com
R EMEDIES 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 fisherphillips.com
P RIVATE P LAN O PTION 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 fisherphillips.com
K EY D ATES 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 fisherphillips.com
T HANK Y OU Any Questions? Joshua D. Nadreau Fisher Phillips LLP 200 State Street, 7 th Floor Boston, MA 02109 jnadreau@fisherphillips.com fisherphillips.com
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