The New Paid Family and Medical Leave Act: What’s an Employer to Do?

While it may not  have been top of mind amid the Covid turmoil of 2020, the Massachusetts Paid Family and Medical Leave Act (PFML) was not impacted by the pandemic and went into effect as scheduled earlier this year. Employees can now take advantage of it paid leave provisions. Financial contributions that began in Fall 2019 comprise the nest egg, as it were,  for a broad array of worker leave options that became available January 1, 2021, as planned when the law was passed in 2018. Employers now must deal with the new law’s regulatory framework and, perhaps, the holes that will be created in their workforces by employees who take up to 26 weeks of leave per year while enjoying protection against job loss.

Before employers are forced to deal with these sorts of issues, applications must be filed and leaves must be approved. The process is administered by the Department of Family and Medical Leave, which decides whether to approve leaves and also pays employees for time off at up to $850 weekly based on their normal wages. Employer involvement in this process is relatively minimal, though there are steps that must be taken to help the program flow smoothly. What follows is an overview of the basics of the PFML and how employers can successfully navigate it.

Leave Options

The maximum benefit of 26 weeks of leave is available in a narrow range of circumstances. It may be used by employees to care for active military service members who suffer serious, service-related medical problems. Other types of service-related leaves are capped at 12 weeks. The PFML also provides up to 20 weeks of leave caused by an employee’s own serious medical condition. Though leave to care for a family member’s serious medical condition is also available, the cap is 12 weeks and the benefit cannot be used until July 1, 2021. Employees can also take up to 12 weeks of leave per year to bond with a newborn or newly adopted child prior to his/her first birthday. Again, though all approved leaves under the PFML are paid, the money does not come from employers. The Department of Family and Medical Leave is responsible for making the wage payments outlined by the statute. Sick and vacation leave benefits need not accrue during an employee’s leave of absence. Employers must continue to make their share of health insurance payments for absent workers and employees must do the same.

Employer Obligations

As all employers know or should know by now, the PFML requires of them two major tasks: provide information to their workers though posters and policies and make quarterly payments to the Department to fund the family and medical leave program. Both these tasks should have been undertaken long ago, with employers calculating employee contributions based on a set formula, contributing a roughly equal amount if they have 25 or more employees, and sending the money to the Department. Employers also need to determine whether independent contractors who may perform work for them are covered and, in limited circumstances, whether an exemption from the law applies to them. Penalties may apply for failing to comply with any of these requirements. Finally, employers must designate a PFML Administrator through the Department’s web portal to handle the processing of information that will be requested when employees apply for benefits. There is little else for employers to do other than ensuring that they comply with the law when employees apply for and/or receive leave benefits.

Application Process

When employees believe they are entitled to a leave under the statute, they must apply directly to the Department up to 60 days in advance of the leave date. Employers who are asked about the process need only refer workers to the Department’s online application portal. Employers first get notice that the application is underway and are later notified it is complete and asked to review it. Comments by employers on the merits of applications will be accepted and considered, but the Department of Family and Medical Leave makes all decisions whether to approve or deny them. As a further part of that process, employers will be asked to both confirm the accuracy of an employee’s information and to provide data such as whether other leaves were taken, whether employees receive sick leave or vacation pay for absences, the period of employment and wages earned, the employee’s regular work schedule, and other information. Once the Department makes a decision on an application, it will notify the employer and describe the terms of the leave and/or reasons for denial, as the case may be.

Job Protection and Retaliation

Employees on an approved leave under the PFML enjoy job protection, and employers cannot retaliate against them for participating in the program. Regardless of any inconvenience to their employers, employees must be returned to the same or a similar job with similar pay and benefits when their leaves end. This rule will not apply when bona fide layoffs occur among similarly situated employees during the leave period. Employers cannot punish their workers for applying for or taking leave. Damages of up to three times lost wages and reimbursement of legal fees may be awarded for transgressions of the law. An exception to these job protections exists when leave is taken for treatment of substance abuse. Employers with an established, communicated policy providing for job loss based on substance use may be permitted to terminate an employee on paid leave. For workers who will return to work, employers may uniformly require a fitness for duty certification from a medical provider.