[UPDATE: On June 11, 2019, state officials issued a joint statement noting that the state has agreed to a three month postponement before companies will be assessed fees pursuant to the PFML, meaning the taxes will begin in October, 2019 rather than on July 1, 2019 as previously anticipated. In May, 2019, the Department of Family and Medical Leave previously extended other deadlines, including the deadline for employers to distribute notice and to file for private plan exemptions, as described further here. We will continue to update with further developments.]

April 8, 2019

Paid Family and Medical Leave is on its way to Massachusetts.  In its latest update, the Commonwealth’s Department of Family and Medical Leave (“DFML”) published proposed regulations on March 29, 2019 for public comment.  After the next round of revisions, the final Paid Family Medical Leave (“PFML”) regulations will become effective July 1, 2019.  The Commonwealth also recently published summary guides of the PFML law, one directed at employers and one directed at workers, and a workplace poster that the Commonwealth will require employers to display starting July 1 in a conspicuous spot on their premises.

The new proposed regulations contain a number of updates from the draft regulations released earlier this year.  In addition to defining a number of key terms, the most notable developments in the regulations include the following:

  • Better Defined Scope for In-State versus Out-of-State Employers: The scope of coverage of PFML has been better-defined.  Coverage extends to those employers who provide “service localized in the Commonwealth.”  This means that coverage extends to an employer if an employer’s operations or services occur entirely within Massachusetts, or if some part of service occurs within the Commonwealth and a potential covered individual operates in Massachusetts.
  • Fitness for Duty Requirement: When an employee takes leave because of their own serious health condition, employers may be allowed to apply a uniform policy requiring certain conditions and certifications before that employee can return to work.  The policy must apply to all similarly situated employees equally.  Employers seeking to implement such a policy must also provide the employee with a list of the essential functions of their job within 5 days of receiving notice of leave, and the employer must tailor the required certification to those essential functions.
  • Intermittent Time Off: The regulations now provide that PFML may be taken on an intermittent or reduced schedule for a few different scenarios: if mutually agreed upon between employer and employee; to care for a family member’s serious health condition; for an employee’s own serious health condition if medically necessary; and for certain situations involving armed service members.
  • Clarification on Private Plans: The new regulations also clarify how employers can obtain approval of their existing private paid family and medical leave plans, if any, such that they can be exempted from making contributions to the Commonwealth’s PFML fund.  Employers required to contribute to the Commonwealth fund must begin making contributions on July 1, 2019, but can begin applying for an exemption to the contribution requirement on April 29th.  Applications will be available through MassTaxConnect.  Employers can learn more about exemptions through the DFML’s website.

The DFML will now receive comments on these regulations before they take effect on July 1, 2019 (though employer should bear in mind that employees may not begin taking leave pursuant to the PMFL until 2021).  However, as noted, employers must start making contributions to the PFML fund on July 1, 2019 unless otherwise exempted from that requirement pursuant to their private plans.  Accordingly, employers seeking to better understand the regulations and other requirements as this date approaches are encouraged to reach out to counsel to discuss. We will continue to provide updates as these regulations develop further.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.