[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.