In 2018, Massachusetts enacted a paid family and medical leave law (the FMLL) which will have a major impact on all  employers and employees throughout the state. When the law becomes fully effective in 2021, every employer in the state, no matter how small, will be required to participate and allow eligible employees to take paid family and medical leave (FMLL leave) to deal with their own serious health conditions, to bond with newly-born  or adopted children and other purposes.  Regulations will be issued in early 2019 which will provide significant guidance on the law, but in the meantime here are some answers to frequently asked questions.

When will the law take effect?

Paid leave benefits will not start until January 1, 2021. But beginning  July 1, 2019, employers must post a notice of benefits available under the new law and begin providing new employees with   written information regarding the law. The required notices will be created by a new state agency, the Department of Family and Medical Leave (the DFML).  Effective July 1, 2019, employers must begin payroll tax contributions to fund the law, although some or all of the cost will be funded by employees as discussed below.

Which employers are covered by the FMLL?

Every employer in Massachusetts, regardless of size or number of employees.

What types of notices are required and when?

Effective July 1, 2019,  employers must post a notice of benefits available under the new law at each of their facilities. The notice will be prepared by the DFML, presumably before July 1. It must be in English and any other language that is the primary language of five or more employees) at the facility.

Effective July 1, 2019, employers must, within 30 days after each employee’s start date, provide written information (prepared or approved by the DFML) in the employee’s primary language, explaining  the benefits available to employees under the new law. Employers must get a written acknowledgement of receipt or a signed statement indicating the employee’s refusal to sign an acknowledgement.

Notices must also be given to  self-employed individuals with whom the employer contracts, at the time the contract is made.

Failure to comply with these notice requirements will result in a civil penalty of $50 per employee for the first violation and $300 per employee for each subsequent violation.

Employees are required to give at least 30 days’ notice of the anticipated start date of the leave, the anticipated length of the leave, and the expected return date. If 30 days’ notice is impracticable, notice must be given as soon as practicable

How will the FMLL be administered?

The law creates a new  Department of Family and Medical Leave  (DFML) which will  oversee and make benefit payments, similar to the Department of Unemployment Assistance. Employees will file claims with the DFML which will decide issues like eligibility and the amount of the benefit.  The department will establish procedures and forms for filing claims under the law and certifying the need for leave.

Even though employees will need to apply to the department, employers will need to take steps to comply with the law, such as keeping track of requests for leave, monitoring the length of the leave, and restoring the employee’s position at the end of the leave.

Because employers are required to reinstate employees after the leave ends and are prohibited from interfering with the employee’s right to apply for and take leave,  smaller employers will have to administer their own leave of absence programs, just as employers with 50 or more employees now do for FMLA.

Who pays for FMLL leave?

FMLL leave  will be funded by a .63% payroll tax contribution (to be adjusted annually), which will be paid into a fund administered by the DFML. Employers with 25 or more employees must pay the full contribution but are allowed (but not required) to  deduct from employees ‘ wages up to 100% of the contribution for family leave and up to 40% of the contribution for medical leave. Employers with less than 25 employees are not required to pay the employer portion of the contribution but will have  to deduct the payroll tax from employees ‘ wages.

What can FMLL  leave be used for?

Effective January 1, 2021, eligible employees can take paid medical leave for their own serious health conditions, defined as  “an illness, injury, impairment or physical or mental condition that involves (i) inpatient care in a hospital, hospice or residential medical facility; or (ii) continuing treatment by a health care provider.”

Effective July 1, 2021, eligible employees  can take paid family leave for the following reasons:

  • to care for a family member who has a serious health condition;
  • to bond with the employee’s child during the first 12 months after the child’s birth or the first 12 months after the placement of the child with the employee for adoption or foster care;
  • because of any “qualifying exigency” arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active military duty;
  • to care for a family member who is a covered service member with a serious injury or illness incurred or aggravated in the line of duty.

“Family member” includes the employee’s  spouse, children, and parents, as well as domestic partner, grandchildren, grandparents, siblings, and parents of a spouse or domestic partner.

How long can FMLL leave last?

  • up to 12 weeks of paid family leave each benefit year;
  • up to 20 weeks of paid medical leave each benefit year for the employee’s own serious health condition;
  • up to 26 weeks of paid family leave each benefit year to care for a family member who is a covered service member.

An employee cannot take more than 26 weeks of FMLL leave in a benefit year.

The benefit year for FMLL leave is the 52 week period beginning on the Sunday preceding the first day the protected leave begins. This is different than the  “rolling backward” year often used for FMLA purposes, so employers covered by the FMLA (50 or more employees) should consider changing their FMLA policies.

How long does an employee have to work for a company in order to be eligible?

Employees may  be eligible for FMLL leave as soon as they are hired, unlike the FMLA, which requires a year of employment and 1250 hours of service. Employees are eligible if they satisfy the requirements for unemployment benefits, meaning that they have sufficient earnings from a Massachusetts employer during the last three calendar quarters prior to the effective date of the claim, even if the earnings were from a prior employer.

Note: former employees who were separated from employment less than 26 weeks from the start of  FMLL leave may also be  eligible for benefits, but not reinstatement.  Self-employed individuals who elected coverage under the law and reported required self-employment earnings can also receive benefits.

How much are the weekly benefits?

Subject to  a seven-day waiting period, employees will receive a maximum of $850 a week (80 percent of the individual’s actual weekly wage up to 50 percent of the state average weekly wage, currently $1338, plus 50 percent of the individual’s weekly wage above that amount, up to the $850 cap). The DFML may adjust this maximum weekly benefit amount on or before October 1 of each year to be 64 percent of the state average weekly wage.

Can  the leave be intermittent?

Employees are allowed to take Intermittent or part-time leave due to the employee’s  serious health condition,  for care of a family member with a serious health condition, or for care of a covered service member.  Leave for child bonding or to deal with qualifying exigencies arising out of military deployment may not be taken intermittently or on a reduced leave schedule unless the employer and employee agree otherwise.

Is FMLL leave concurrent with FMLA and other leave?

FMLL leave will run concurrently with leave under the Family and Medical Leave Act and the Massachusetts Parental Leave Act. Employees can choose but cannot be required to use paid sick, vacation, or personal time while on FMLL leave. Employers can require that family or medical leave taken under an employer disability or leave plan or policy run concurrently with leave taken under the law.

What happens to an employee’s benefits and insurance during the leave?

During FMLL leave, the employee continues to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit, and other employment benefits. Employers must continue employees’ health insurance benefits under the same conditions that would have existed if the employee had not taken leave, so employers must continue paying the employer portion of health insurance premiums while employees are on FMLL leave. Presumably employees must continue to pay their portion of premiums as well, so arrangements will need to be made for this.

 Must an employee’s position be restored after the leave?

Upon return to work, an employee must be restored to his or her previous position or an equivalent position, with the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave. This does not apply if the employee’s status would have changed anyway, for example where the employee would have been laid off.

Can an employer retaliate against an employee who applies for leave?

No, employers are prohibited from retaliating against employees for taking family or medical leave, exercising their rights under the law, taking legal action under the law, or participating in a proceeding related to the law. Employers cannot interfere  with an employee’s rights under the law. Any negative change to an employee’s status or adverse employment action against an employee during a leave or within six months of the leave creates a presumption of retaliation, which the employer may rebut with clear and convincing evidence that the action was taken for a non-retaliatory reason. Employees can bring civil lawsuits for retaliation or interference. Employers who violate the law can be ordered  to rescind any adverse action, reinstate the employee, reinstate benefits, pay triple damages for lost wages, and pay the employee’s attorney fees.

Note that interfering with an employee’s right to take a leave may also violate other laws, including the Americans with Disabilities Act, the Massachusetts anti-discrimination law (Chapter 151B) and the federal Family and Medical Leave Act.

 Can an employer opt out and provide a private plan instead?

Employers may apply  to the DFML for approval to opt out of the FMLL and  fulfill their obligations through a private plan. Private plan alternatives must be approved by the Department and must provide employees with the same rights, protections, and benefits as the new law. Employers can have private plan alternatives for both family and medical leave or for just family or medical leave. Most likely insurance companies will develop insurance products for this purpose.

At Boston Employment Law PC, we represent both employers and employees with respect to a wide variety of employment law issues. For more information, please contact Howard Brown at hmb@bostonemploymentlaw.com or at (617) 566-8090.