On January 23, the Massachusetts Department of Family and Medical Leave (the \u201cDepartment\u201d) published draft regulations (the \u201cRegulations\u201d) regarding the newly created Paid Family and Medical Leave Program (the \u201cProgram\u201d).\u00a0 The Regulations expand upon legislation enacted this past summer (Acts 2018, c. 121, the \u201cAct\u201d) requiring private employers of all sizes to make contributions to the Program and provide leave to eligible employees.\u00a0 Employers must also provide leave to independent contractors who opt into the Program and cover the contributions themselves (collectively, employees and independent contractors are referred to as \u201celigible individuals\u201d).<\/p>\n
As specified under the Act, eligible individuals are entitled to job-protected, paid leave for up to 12 weeks per year to care for a sick family member or child, up to 20 weeks per year to attend to the individual\u2019s own serious health condition, and up to 26 weeks per year to deal with an emergency related to the deployment of a family member for military service. Each eligible individual may take a maximum of 26 weeks of leave under the Program each year.<\/p>\n
While the Act was light on language directed at employers, the Regulations raise the following new obligations for employers:\u00a0<\/strong><\/p>\n At the end of each calendar quarter, employers must file a report containing the name, social security number, wages and other earnings paid to each employee. \u00a0Employers must also report the federal employer identification number and the identification number that the employer is required to include on a withholding tax return filed under M.G.L. c. 62B, as well as the names, social security numbers and payments made to individuals for services that are reported on an IRS Form 1099-MISC.\u00a0 Employers must submit the quarterly filings to the Department through the MassTaxConnect system.<\/p>\n The Act already provided that an employer must respond to any request regarding wage, earnings or employment information for any eligible individual within 10 calendar days after the date that the request was sent.\u00a0 The Regulations also mandate that, upon request, employers will have 5 calendar days to provide the Department with information or records relevant to a claim for benefits, including (a) wages and\/or earnings for the past 12 months, (b) a job description, (c) whether the eligible individual works a full- or part-time schedule, (d) weekly hours worked, (e) prior requests\/approvals for a \u201cqualifying reason,\u201d (f) amount of paid leave already taken for a \u201cqualifying reason\u201d during the current benefit year, (g) a description of the employer\u2019s paid leave policies, and whether the eligible individual has received benefits during the current benefit year or will receive benefits during the requested leave, and (h) \u201c[a]ny other relevant information or records related to the claim.\u201d<\/p>\n The Regulations provide that in the case of a \u201cchange in relevant circumstances\u201d that might extend, reduce or modify the amount of benefits or length of leave, both the eligible individual and the employer have an affirmative obligation to inform the Department of this change using Department-provided forms.\u00a0 The Regulations do not define which circumstances constitute a \u201cchange in relevant circumstances.\u201d<\/p>\n As provided in the Act, employers may not retaliate against employees for their participation in the Program, \u201cthrough the application of attendance policies or otherwise.\u201d \u00a0The Regulations, however, provide that an employee who has been approved for leave benefits \u201cmust still comply with any attendance and call in procedures established by the employer.\u201d\u00a0 Further, employees on intermittent leave must report to work at times agreed upon with the employer and may not \u201cunduly disrupt the employer\u2019s operation.\u201d\u00a0 The Regulation provides that all employees must return to work following the expiration of the leave period.<\/p>\n However, employers should be wary of imposing discipline on employees exercising their rights under the Program, including discipline for the violation of an attendance policy. The Regulations specify that employees must be permitted to return to work after their leave to the same or equivalent position, with the same status, pay, benefits, length-of-service credit and seniority as they had on the date of leave.\u00a0 Any action taken against the employee to prevent this return, including non-disciplinary changes to their role, during or within six months of leave will be presumed retaliation. An employer may only overcome this presumption with \u201cclear or convincing evidence\u201d that their decision to discipline was non-retaliatory.<\/p>\n While not specifically included in the Regulations, the Department also released the initial contribution rates for each leave.\u00a0 Of the total contribution rate of 0.63% (amount to be adjusted annually) of an eligible individual\u2019s $128,400 in earnings (based on the maximum wage base tied to the federal Social Security Administration\u2019s annually-calculated contribution and benefit base), 0.52% will be allocated to medical leave and 0.11% will be allocated to family leave. Per the Act, employers are required to contribute a minimum of 60% of the medical leave contribution, but are not required to contribute to the family leave contribution.<\/p>\n The information above is a summary of the major employer obligations included in the Regulations.\u00a0 As the Regulations provide additional information on the Program specifics, employers should comprehensively review the Regulations.<\/p>\n The Regulations are only in draft form, and further revisions are expected before the Regulations are finalized. However, after reviewing the Regulations in full, employers should submit any questions or comments to the Department for consideration in drafting the final regulations.\u00a0 Between January 30 and February 19, employers will also have the opportunity to share their informal comments with the Department at listening sessions throughout the state (see the Department\u2019s website for specific dates and locations). The Regulations will be re-published for formal public comment on or before March 29, 2019. The Department expects that, after an opportunity for public comment, the final regulations will be promulgated and employer contributions will begin as of July 1, 2019.<\/p>\nObligation to Submit Quarterly Filings<\/h2>\n
Obligation to Respond to Department Requests<\/h2>\n
Obligation to Update<\/h2>\n
Obligation Not to Retaliate<\/h2>\n
Obligation to Make Contributions<\/h2>\n
Importance of Reviewing the Regulations<\/h2>\n