Please note that the deadlines and contribution rates in this client alert have been amended by a new law enacted on June 13, 2019.
By: Renee Inomata and Stéphanie Smith
In Part I of this alert, we reviewed the main requirements of the Paid Family and Medical Leave (PFML) and steps that employers must take before June 30, 2019 to comply with the law. Here in Part II, we review in greater detail the benefits that will be available to covered workers starting on January 1, 2021, other employee rights and protections under the law, and employers’ withholding and reporting obligations starting on July 1, 2019.
PFML Benefits Available to Covered Workers
The PFML provides eligible workers with partial income replacement benefits through the Massachusetts Department of Family and Medical Leave (“Department”).
Starting on January 1, 2021, qualifying workers will be eligible for the following:
- “Individual Medical Leave:” Up to 20 weeks of medical leave in a benefit year if the individual is unable to work due to a serious health condition.
- “Bonding Leave:” Up to 12 weeks of family leave to bond with the covered individual’s child during the first 12 months after the child’s birth or after the placement of the child for adoption or foster care with the covered worker.
- “Qualifying Exigency Leave:” Up to 12 weeks of leave because of a 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 duty in the US Armed Forces.
- “Military Caregiver Leave:” Up to 26 weeks of family leave to care of a family member who is a covered service member with a serious health condition.
- “Caregiver Leave:” Up to 12 weeks of paid family leave per benefit year to care for a sick family member with a serious health condition.
Eligible workers will apply for PFML benefits by filing a claim with the Department. Benefits payable will be subject to a seven-day waiting period. Thereafter, benefits will be paid according to a formula set by the law and based on the employee’s average weekly earnings, up to a maximum weekly benefit currently set at $850 per week.
Additional Employee Rights and Protections under PFML
Job Protection
Not surprisingly, job protection for taking PFML is available to those eligible individuals who are employees as of the start of PFML (and not self-employed individuals). Employees are entitled to be returned to the position which the employee held prior to the leave or to a position with the same status, pay, employment benefits, length-of-service credit and seniority as of the date the employee started the leave.
Benefits Continuation During PFML
If the employee participated in an employer’s group health insurance plan, then the employer is required to continue to provide and contribute to the employee’s health insurance benefits at the level and under the conditions coverage would have been provided if the employee had not taken leave. Additionally, an employee’s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit or other employment benefits plans or programs must not be affected by the employee’s taking PFML.
Appeals of Denials or Requests for Extension
A covered individual whose claim for PFML benefits has been denied can appeal the decision to the Department within 10 days of the denial. This right of appeal is available even if the employee has been denied benefits under a private plan.
Prohibition on Retaliation – Presumption Against Employer
Employers may not discriminate or retaliate against any covered worker who exercises their rights under the PFML law, or interfere with any such worker’s ability to exercise PFML rights. Employers also may not discriminate or retaliate against any individual who files a complaint or institutes, or causes to be instituted, a proceeding under or related to PFML.
Importantly, any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment that occurs (a) while an employee is on PFML; (b) at any time during the six month period immediately following an employee’s leave under the PFML or return to work will be presumed to be retaliation. Any such negative change that occurs to an employee within six months after the termination of any proceedings or inquiries under or related to PFML in which the employee participated also will be presumed to be retaliation.
If an employer is found to have threatened, coerced or retaliated against an employee, the employer will be required to rescind the negative change, including offering reinstatement to any terminated employee, and will also be liable for all remedies available under the PFML.
Withholding Obligations Starting July 1, 2019
The final PFML regulations will be published by July 1, 2019. As of publishing this alert, it has not yet been determined whether the payroll deductions must be made on a pre-tax or post-tax basis. The initial assumption is that the payroll deduction will be on a post-tax basis. Look out for future updates.
Contributions should be kept in a separate account. The required contributions for Q3 (from July 1, 2019 to September 30, 2019) are due with MassTax Connect by October 31, 2019.
Employers who do not yet have an account with MassTax Connect should register immediately.
Practice Tip: The required quarterly report of gross wages or other payments due with MassTax Connect must include data for all Massachusetts W-2 employees and 1099 contract workers, even if the employing unit is not a covered business entity.
Please note the above is based on information available as of now and is subject to change, at any time; as we continue to receive additional guidance from the Department, and the final regulations have not yet been issued. Please contact attorneys Stephanie Smith and Renee Inomata with any specific questions about the application of the PFML to your business.