December 3, 2018
Central Massachusetts Health

Paid family and medical leave comes to Massachusetts

Chelsie A. Vokes
David M. Felper

Beginning in 2021, most Massachusetts employees will be entitled to paid family and medical leave under Massachusetts' recently enacted Paid Family and Medical Leave Program. Employers of all sizes are required to participate in the program, except for certain public entities, which may opt in. Here are the program's major points that employers must know:

How much leave time must I give to each employee?

Employees will be entitled to 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's 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. Collectively, employees cannot take more than 26 weeks per year. Program benefits need not be provided during the first seven days of leave, during which time the employee may, but cannot be required to, use accrued sick or vacation time.

What will this cost me?

Starting on July 1, 2019, covered employers must contribute an initial rate of 0.63 percent of each employee's wages to the state trust funding the program, but may deduct a portion of the contribution from employee wages. Employers should be careful deducting wages, as improper deductions can violate state and federal wage laws. Employers with less than 25 employees need not pay the employer portion of the contributions. Although employer contributions begin in 2019, benefits under the Program will not be distributed until January of 2021 (except for benefits to care for a sick family member or child, which will not be distributed until July 1, 2021).

How does this change the benefits that I already provide?

Leave provided under Massachusetts' Parental Leave Law or the Federal Family and Medical Leave Act may run concurrently with leave under the program. Disability or family care leave provided in a collective bargaining agreement or employer policy may also be provided "concurrently or otherwise coordinated with" payments or leave available under the program, but only if the employer benefits equal or exceed the benefits available under the program and employers notify employees that their employer benefits will run concurrently.

Employers will also have the option to "opt out" of the program entirely, but only if the benefits that they provide meet or exceed the program's requirements and their program has been approved by the Department of Family and Medical Leave, a new state agency created to implement the program.

During leave, employers must continue to provide and contribute to the employee's health insurance and other employment-related benefits, if any, at the level and on the same conditions as if the employee were working continuously throughout the leave period.

Employers may not retaliate against employees for their use of the program. Any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee during or within six months after return from leave will be presumed retaliation.

What else must I do before 2021?

Also starting on July 1, employers must post a notice of rights in the workplace and provide new employees or independent contractors with written notice of their rights under the program within 30 days of hire or engagement, which the party receiving the written notice must confirm in writing.

David M. Felper and Chelsie A. Vokes are attorneys in Bowditch & Dewey LLP's Labor, Employment and Higher Education practice, where they advise businesses, colleges and universities and nonprofit organizations.

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