The Massachusetts Department of Family and Medical Leave (“DFML”) has posted the much-anticipated final regulations regarding Massachusetts’ Paid Family and Medical Leave law (“PFML”). The final regulations come on the heels of Massachusetts lawmakers’ recent extension of key PFML compliance dates. While the final regulations are materially unchanged from the previous draft issued March 29th, the following substantive additions and clarifications are worth noting:

  • Private Plan Clarifications: The bulk of the revisions to the draft regulations concern clarifications regarding employers’ rights and obligations when their own private leave plan satisfies the requirements for exemption from the PPFML contribution requirements. First, employers with approved private plans must retain information and records related to their plans, including any documentation related to employees’ claims for benefits. They must retain all such records for three years and furnish them to the DFML upon request. Second, there are penalties for employers who fail to maintain or renew approved-private plans prior to January 1, 2021. Third, the regulations provide instructions for employers when an employer does not renew their private plan, including notifying covered individuals and the DFML of their intent not to renew.
  • Intermittent Leave: Employers are allowed to require that any intermittent PFML be taken in certain minimum increments, but the required minimum must not be greater than four consecutive hours. For example, an employer may require that an employee use PFML time off in minimum increments of two hours at a time, but not five hours.
  • Deduction Percentages Among Different Groups of Employees: Employers may choose to deduct different percentages from different groups of covered individuals for purposes of making contributions, provided that no deductions exceed the maximum deduction allowed. In other words, there is not a strict requirement that deductions be equal across the entirety of an employer’s workforce.
  • Change of Contribution Rates: The regulations reflect the change in the total combined contribution rate pursuant to the PFML extension, now increasing from 0.63% to 0.75% of employee qualified earnings.

Separately, the DFML has also posted new template notices that employers can use to fulfill the requirement of informing their workforce of their PFML rights, benefits, and obligations before September 30, 2019. Revised notices to Massachusetts W-2 employees are available on the DFML’s website here, and notices to Massachusetts 1099-MISC contractors are available here. Notably, in each instance, the Commonwealth has provided template notices for employers with twenty-five or more covered individuals and for employers with less than twenty-five covered individuals. Previous templates did not make such a distinction.

As a reminder, despite the recent extension of compliance dates, deadlines are nonetheless quickly approaching, including the deadlines to notify covered workforces, to begin withholding contributions, and to submit an application for an exemption . Employers are encouraged to reach out to counsel for further guidance.

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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.