Employment and Labor Law

When the Massachusetts Paid Family and Medical Leave Act was enacted in 2019, some employers applied for an exemption from the state’s plan and opted out of contributing to the state plan by having a private plan that provided paid leave benefits that were equal to or more generous than those provided in the state plan.  As January 1, 2021 nears, the MA Department of Family and Medical Leave is preparing to handle applications for PFMLA leave.  But, the DFML will not be administering PFMLA leave for those employers who obtained exemptions.  Employers who obtained exemptions must administer PFMLA leave requests – and comply with other PFMLA obligations – themselves.  Here are three tips to help employers who obtained exemptions. _¹

1.         Ensure a properly trained employee is involved in administering PFML.  Regardless of whether the employer self-insures PFMLA benefits or obtained an insurance policy to cover PFMLA benefits, because PFMLA provides both benefits for qualifying reasons and job-protected leave, the employer should identify an employee to manage PFML requests, including coordinating PFMLA benefits payments with the insurance company, if applicable, and ensuring appropriate job-protections and non-retaliation.  A PFMLA triggering event may also trigger leaves under the federal Family and Medical Leave Act or state Parental Leave law, or obligations to consider reasonable accommodations under applicable local, state and federal laws or rules, As such, an employer should ensure that the individual in the employer’s organization handling, or coordinating with the insurance company on, PFMLA requests is fully trained on how best to navigate the myriad overlapping leave laws.

2.         Communicate a clear PFMLA policy to workers.  Most employers likely have provided the form notices available from the DFML website to workers about PFMLA benefits generally.  Employers may also have already notified workers that the employer has obtained an exemption from the state PFML plan, because it provides a private plan that will provide benefits equal to or greater than those offered under the state plan.  However, to be exempt from the state plan, an employer must also comply with the timelines and protocols applicable to the DFML for processing PFMLA requests in the state plan, as well as the other non-benefit obligations in the PFMLA.  As such, employers may wish notify employees about: (a) the procedure to request PFMLA, including to whom to make the request, what information the worker needs to provide with the request, and the timeline for when the employer will be deciding on the request, (b) when intermittent PFMLA is permitted, (c) how and when a worker can to appeal a denial of a request, (d) how PFMLA benefits are calculated, and (e) how other leave policies interact and overlap with PFML. For example, an employee is expected to provide at least thirty (30) days’ advance notice to the employer of an PFML qualifying leave, where possible; an employer must decide whether the request is approved or denied no later than fourteen (14) calendar days after receiving a complete request for PFML, or must provide notice to the employee of additional information is required to process the request; and payment of PFMLA benefits must commence within fourteen (14) days after the PFML request is approved. Due to these relatively short timelines, it is important for employers to be able to coordinate effectively with any applicable insurance company and to be able to make determinations on PFML requests promptly.  Additionally, under the PFMLA,  termination or other negative change in an employee’s seniority, status, employment benefits, pay or other terms and conditions of employment at any time up to six (6) months after taking leave, being restored to a job after leave or termination of an investigation or proceedings related to PFML in which the employee participated, creates a presumption of retaliation.  Thus, managers should be reminded to timely manage and document performance issues and make appropriate disciplinary determinations, so that the presumption of retaliation can be rebutted, if an employee who has requested or taken PFMLA leave or has complained about noncompliance with PFMLA requirements, is subject to a negative valid change in employment terms or conditions.  

3.         Don’t forget that terminated workers may still be eligible for PFMLA.  Unlike most employee-leave laws, the PFMLA covers workers who may not be employees.  The PFMLA provides the same benefits that a current employee would have to a former employee, who meets the financial eligibility criteria under the PFMLA, for up to twenty-six (26) weeks after the employee’s last day of employment.  If the former employee is unemployed when the request is made, the request should be made to the former employer.  If the former employee is currently employed, then the request should be made to the current employer (or if the current employer has no exemption from the state PFMLA plan, then to the DFML).  Since many employees have lost their jobs due to the coronavirus pandemic, there may be a number of former employees who may seek PFMLA benefits from their former employers come January 1, 2021.  Employers may wish to prepare now for claims by former employees by preparing a notice of PFMLA rights and procedures to provide to a former worker requesting PFML benefits, as well as a questionnaire that gathers information about the former employee’s current employment status and financial eligibility, in addition to information about the qualifying reasons for PFMLA benefits.  Where employers have obtained valid releases of claims arising from employment when an employee’s employment has been terminated, it is unlikely that those releases will cover claims under the PFMLA, since those claims were not and could not have been in existence when the release was signed.  Because of the newness of the PFMLA, although waivers of PFMLA claims that have already arisen are likely to be enforceable, it is as yet unclear how such waivers will be viewed by the DFML or any other enforcement entity.

Since workers will be able to start taking PFMLA leave on January 1, 2021, employers who have obtained an exemption from the state PFMLA plan should prepare before the end of 2020 for handling requests for PFML in 2021.

¹ For those employers who are required to provide PFMLA benefits and who did not obtain exemptions, please go to the DFML website for more information on the state PFMLA plan.