Beginning January 1, 2021, a new state agency will get involved when Massachusetts workers request time off for family and medical needs. Employers can avoid confusion by setting up good procedures now.
What Employers Need to Know:
The day when Massachusetts workers will be entitled to receive paid family and medical leave under the new PFML law — January 1, 2021 — is fast approaching. PFML is unlike most other worker protection laws. It creates an altogether new government system, administered by a new government agency called the Department of PFML (“DPFML”), that overlaps with employers’ existing time-off programs.
In 2021, employers will still respond to employees’ time-off requests by evaluating the company’s obligations and the employees’ rights under a variety of laws, and under company-specific time-off programs. For instance, when an employee is expecting the arrival of a new child in their family, they might apply for parental leave to the employer and to the DPFML. Depending upon the particular circumstances, the employee might be entitled to leave under multiple laws, including the federal Family and Medical Leave Act, the Massachusetts Parental Leave law and the Pregnancy Fairness Act. The employer will make its determination as usual while the DPFML is simultaneously evaluating the request.
Adding PFML will be straightforward in some situations. The DPFML will likely approve the request from the worker preparing for the arrival of a child because bonding with a newborn child is a qualifying reason for PFML. The employer will also approve unpaid time off if the employee is eligible. The employee will take the authorized time off, simultaneously under both systems, receiving payments from the DPFML.
Most employers will have to make some policy changes for PFML compliance. For example, a small company that limits parental leave to the statutory minimum of eight weeks will be in conflict with PFML, which gives benefits for twelve weeks. A time-off policy that does not permit leaves of absence to care for seriously ill family members (outside of the COVID-19 context) will be in direct conflict with the DPFML’s grant of leaves for that purpose. In both cases, the employer will have to expand its leave policies.
Complications are likely to arise from the simultaneous, overlapping decisionmaking of the employer and the DPFML. The DPFML and employer might arrive at different conclusions about whether or not an employee is entitled to time off for a particular injury or illness, or they might disagree about the legitimate duration of the leave. An employee who has taken the maximum PFML benefit during a 20-week medical leave may still be entitled to additional unpaid leave as a reasonable accommodation under the state and federal laws against disability discrimination. And even though an employer may deduct from an employee’s accrued sick time for PFML time off, it’s not as clear that employers can make the same deduction from a general PTO allotment that incorporates sick time. In situations where PFML benefit payments don’t track precisely with the employer’s independent decision on a time-off request, employees are likely to be confused.
What should employers do?
- Before January 1, 2021, set procedures for employee PFML requests. Create application forms and notice forms.
- Before January 1, 2021, set procedures for internal decision making about PFML requests.
- Prepare to collaborate with the DPFML. They will probably request information about your time off policies generally and about individual requests.
- Retrofit your handbook and any standalone procedures or policies. Incorporate the PFML rights into existing leave policies.
- Notify and train your staff. Educate them about the time off they can take and about complying with their obligations around time off. Educate HR staff to implement the new policies and procedures and to identify situations when consultation with an HR lawyer is needed.
- Stay up-to-date on leave laws, through your own research or by consulting with an HR Lawyer. The rules will evolve as the DPFML implements this novel system statewide. An extension of the federal FFCRA (paid family and medical leave for certain reasons related to COVID-19) beyond the end of 2020 would add another layer to the analysis.