Massachusetts: Department of Paid Family and Medical Leave Publishes Proposed Regulations

By Erica E. Flores - Skoler, Abbott & Presser, P.C.

January 24, 2019

As we reported back in June 2018, legislation known as the “Grand Bargain” created a new state program providing paid family and medical leave benefits for eligible Massachusetts employees.  The program is to be administered by a new state agency, the Department of Family and Medical Leave.  The legislation, however, left many questions unanswered.

On January 23rd, the Department published proposed regulations on the law, giving us a first look at how the new Department proposes to answer some of those open questions. The Department will be holding a series of listening sessions throughout the Commonwealth to allow interested persons to weigh in on the draft regulations, including in Springfield on February 1, 2019 and in Worcester on February 5, 2019.  Skoler Abbott attorneys will be in attendance at these sessions, armed with questions and comments we receive from interested clients.  For the moment, however, here are some of the highlights of the new regulations:

• Employers will be required to file quarterly reports containing the name, Social Security number, and wages paid or other earnings for each of their employees and contracted service providers.  Contributions will be paid quarterly, and the amount of contributions owed will be calculated by the Department on the basis of the employer’s quarterly reports. Quarterly reports, other filings and monetary contributions will be submitted through the Department of Revenue’s MassTax Connect System.  

• When determining whether employers are exempt from paying the employer portion of the mandatory contributions (because it has fewer than 25 employees), employers must count all full-time, part-time, seasonal and temporary employees on the payroll, as well as all contracted service providers, during each pay period and divide by the number of pay periods in the previous calendar year.

• The Department did not include in the proposed regulations how the quarterly contributions will be divided between the medical leave and family leave components of the new law.  As a result, we still do not know specifically what percentage of the mandatory contributions employers may deduct from employee wages and from payments made to contracted service providers.

• For purposes of determining whether an employee qualifies to take family leave, the regulations adopt a broad definition of “family member.”  We knew the new law extended beyond parents and children to siblings, grandparents, grandchildren and even in-laws, but the regulations make clear that parents, grandparents and siblings likewise include adoptive, step and foster relatives.

• Like the statute itself, the regulations state that any illness, injury, impairment or physical or mental condition will qualify as a “serious health condition” if it involves inpatient care or continuing treatment by a healthcare provider.   The new regulations do not provide any additional qualifications, such as the length of the inpatient stay or the nature, frequency or duration of the continuing treatment.

• We knew that claims for benefits would have to be accompanied by a certification from a healthcare provider, but the regulations do not indicate whether the Department will require healthcare providers to provide “appropriate medical facts” to support the claim, as the law allows.  Instead, the regulations only require that the certification state that the employee or covered family member has a “serious health condition” and leave open the possibility that the Department may require additional information.

• When an employee files a claim for benefits (or for an extension of benefits), the Department will notify the employer within five business days.  The notice will include the employee’s name, the type of leave requested, the expected duration of the leave (or extension), whether the request is for continuous or intermittent leave and any other relevant information.

• Upon request by the Department, employers may be required to provide “information or records relevant to a claim,” including wages/earnings over the past 12 months, a description of the employee or service provider’s position, full- or part-time status, weekly hours worked, prior requests and approvals for leave, the amount of paid leave already taken during the current benefit year, a description of the employer’s paid leave policies and whether the employee has received paid leave during the benefit year or will receive any paid leave during the requested period of leave.

• The Department will notify both the employee and the employer whether a claim was approved or denied.  An approval notice will include the reason for the approval, the duration of the approved leave, the frequency and duration of approved intermittent leave and the expiration of the approved leave.

• Intermittent leave may be taken to bond with a child only with the agreement of the employer.  Intermittent leave due to a qualified exigency arising out of a family member’s active duty or impending call to duty is always permitted.  All other types of leave, both medical and family leave, may be taken intermittently only if “medically necessary.”

• Employees whose claims are approved must comply with employer attendance and call-out procedures.  Employees who are approved to take leave intermittently must work with their employers to “make an effort to take leave so as not to unduly disrupt the employer’s operation.” Employees may also be subject to discipline for failing to work during the times agreed upon or failing to return following the expiration of the approved leave.

• Employers are required to report to the Department any change in relevant circumstances that would justify an extension, reduction, or other modification of any approved period of leave or amount of benefits.

• The Department did not provide any additional guidance on how an employee on leave accrues vacation time, sick leave, bonuses and other benefits that are typically tied to hours worked.  The regulations merely parrot the statute, stating that the leave “shall not affect” the employee’s right to accrue such benefits.

• Employers who want to opt out of the state program by implementing a private plan will do so via application to the Department.  Approved applications will only be valid for one year, but may be renewed annually.

Unfortunately, in many cases the regulations do not provide much information beyond what is in the statute.  If there are questions you have about the law that are not addressed in the draft regulations, we encourage you to attend one of the scheduled listening sessions or to contact us so we can raise those questions on your behalf.