Massachusetts PFML Again – But Not Yet

Posted on: February 14, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

In our last blog post about Massachusetts Paid Family and Medical Leave (MA PFML), we boldly announced we would be holding Session 2 of our webinars on the law soon, targeting late February.  Well, it turns out that the draft regulations issued on January 23 by the Massachusetts Department of Family and Medical Leave (DFML) are very preliminary and the end of February is much too soon.  We have very little concrete information at this point so discussing the regulations would be quite speculative.  At the end of this post is a summary of the key provisions of the Massachusetts law itself.  In between, let’s share what we do know.

Status of the regulations:  The DFML is holding listening sessions on the draft regs around the state through February, during which they take questions and comments about the draft but do not answer any questions.  I attended the first listening session in Boston and came away with more questions than I started with!  However, I have the good fortune of meeting telephonically periodically with the state Deputy Attorney General who is leading the effort to draft the regulations, so I have been able to share all of my questions, suggestions, and concerns.  The DFML anticipates final regulations by the end of April, with an interim 2nd draft sometime between now and then. 

Employee and employer contribution rates:  One point that seems to be fairly settled is the contribution rates for PFML premiums, which start July 1, 2019. 

Here’s a rundown of what we know:

  • Total premium for both family and medical leave is 0.63% of employee’s wages up to the Social Security taxable amount ($132,900 in 2019)
  • Of that, 0.52% is for medical leave and 0.11% is for family leave
  • The employee pays all of the premium for family leave
  • The premium for medical leave is paid 40% by employee, 60% by employer
  • The net result is that the employer and employee each pay approximately 50% of the total premium
  • Employers can opt to pay for the employee’s share of premiums for the public plan or, in the case of a private plan, not collect premiums

That 0.52%/0.11% split between medical and family leave premiums is contained in the draft regulations so it’s still subject to possible revisions, but the DFML seems pretty set on those numbers.

Private plans:  Sometimes called voluntary plans in other states, the Massachusetts statute does allow employers to opt out of the state “public” plan and instead comply with the law via a private plan administered by the employer, TPA or insurance carrier.  Here is what we know so far:

A private plan must confer all of the same rights, protections and benefits provided to employees under the PFML law, including but not limited to:

  • Providing family leave to a covered individual for the reasons and for the number of weeks required by the law
  • Allowing family or medical leave to be taken intermittently or on a reduced schedule
  • Providing a wage replacement rate during all family and medical leave of at least the amount required by the law
  • Imposing no additional conditions on the use of family or medical leave beyond those explicitly authorized by the law or regulations
  • Using the same employee eligibility requirements as set by the law, and
  • Providing that the cost to employees covered by a private plan shall not be greater than the cost charged under the state program. 

An employer can choose to provide greater employee rights and benefits than those set by the law – e.g., a higher benefit rate or more weeks of paid leave.

Matrix is on it:  Watch this blog for updated information and dates for the next MA PFML webinar as things develop with state procedures and the regulations.  As we did in Washington, Matrix will prepare a Massachusetts private plan template for use by our clients who engage Matrix as their Massachusetts PFML TPA.  One advantage to working with the state on developing the regulations is that Matrix has been able to suggest regulations that will make having a private plan easier for employers and more beneficial to both employers and employees.

Summary of the PFML law

Here are the basic elements of the MA PFML, subject to elaboration and further development through the regulations:

Effective Date:                 

  • Premium contributions: 07-01-2019.
  • Benefits: Family member SHC: 07-01-2021.
  • All other reasons: 01-01-2021.

Administration:               

  • By state; private plans permitted; insurance permitted.

Employee Eligibility:    

  • Employee has been paid wages in the 4 quarters prior to leave amounting to at least 30 times the weekly benefit rate.
  • Includes former employees if eligibility is met at end of employment and leave commences within 26 weeks

Covered Employer:        

  • All; no minimum number of employees

Job Protection:                

  • Same or equivalent position

Leave Reasons:                

  • Employee’s SHC
  • Family member’s SHC
  • Bonding/parental leave
  • Military exigencies (same as FMLA)
  • Care for ill or injured servicemember

Covered Relationships:

FMLA and MA PFML

  •  Spouse
  •  Child
  • Parent

Additional MA PFML Family Members

  • Domestic partner
  • Parent-in-law (including parent of domestic partner)
  • Grandchild
  • Grandparent
  • Sibling

Duration (12 months):                  

  • Employee’s SHC (medical leave): 20 weeks
  • Family leave (bonding, care for family member, or military exigency): 12 weeks
  • Care for service member

Maximum in 12-month period:

  • 26 weeks

Leave Calculation Method:         

  • “Benefit Year” — measured forward 52 weeks from the Sunday preceding the first day of the EE’s covered leave

Leave Use Increments:                 

  • No minimum increment
  • Continuous, intermittent, reduced

Funding:                                             

  • Family leave premium fully paid by EE
  • Medical leave paid 40% by EE, 60% by ER
  • Total premium = 0.63% of EE’s wages
  • Cap on wages subject to premium determined by Social Security program limit ($132,900 for 2019)
  • Split between family and medical leave premiums:
  • 52% for medical and 0.11% for family = 0.63%
  • Comes out to about 50/50 split in total between employer/employee

Benefits:                            

  • 80% on portion of employee’s Average Weekly Wages (AWW) equal to or less than 50% of state AWW, plus
  • 50% on portion of employee’s AWW greater than 50% of state AWW
  • State AWW is currently $1107.48 (Dec 2019)

https://ycharts.com/indicators/massachusetts_average_weekly_earnings_of_all_employees_private_service_providing_unadjusted

  • Maximum based on 64% of state AWW
  • Statutory cap of $850/week if 64% of AWW is higher

Voluntary Plans:              

  • Permitted for medical leave and/or family leave
  • Must be approved by state
  • Insurance permitted (but no details in law)

Effect on other laws:     

  • Concurrent with FMLA
  • There is no existing MA family/medical leave law
  • MA Parental Leave still in effect – 8 weeks for bonding

Draft regulations:           

  • Released 01-23-2019 – lots of work to be done yet!

Massachusetts PFML Rolls Forward – Draft Regulations Released!

Posted on: January 25, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

 

You know you are a compliance geek when the bright spot of your week is the release of new leave law regulations!  Yes, I’m guilty as charged – but I know I’m not alone.  Here’s the scoop:

On January 23 the Massachusetts Department of Family and Medical Leave (DFML) released draft regulations that start to flesh out the how-to’s of the Massachusetts Paid Family & Medical Leave law (PFML).  The regulations can be accessed from a link on the DFML home page.

 

We know you are eager to learn all about MA PFML, the new draft regulations, and what they mean for your business.  That’s why we will be holding webinars soon – presently targeted for February 27 and 28.

For more information and an invitation to the webinars, watch this blog, contact your sales or account manager, or send us an email at ping@matrixcos.com.

 

 

Kudos to the DFML for getting this document out somewhat early.  The MA law doesn’t require draft regulations until March 31 and final regs until July 1, 2019 – very late in the game, considering employer and employee contributions start on July 1.  However, the DFML is cognizant of the challenges employers will face getting ready for this new leave and benefits law so, truly, the sooner the better.  The Department also expects to finalize the regulations prior to that July 1 deadline.

Be aware, however, this version is very likely to change before being finalized.  For that reason, I am not going into much detail here about what the draft regulations contain.  The document itself states in a header on every page, “DRAFT – REGULATIONS UNDER DEVELOPMENT – FOR THE PURPOSE OF EARLY PUBLIC INPUT ONLY – 1/23/19.”

To this end, the DFML has scheduled 7 public listening sessions to gather comments on the draft regulations.   The sessions run from January 30 through February 19 at various locations around the state.  Dates and locations are available on the DFML home page.

At Matrix we are actively involved in keeping current on MA PFML developments, but we are also helping to shape these and similar regulations.  I lead a small group that has periodic conferences directly with the Massachusetts Undersecretary of Labor/General Counsel for the Executive Office of Labor and Workforce Development, who is leading the development of the MA regulations.  In addition I will attend the January 30 listening session in Boston while other Matrix representatives will attend other sessions around the state.

DRAFT REGULATIONS

Much of the content of the draft regulations is a repeat of provisions of the PFML law itself.  There are some details about claims documentation, time limits, and employer reporting obligations.  Much more is needed to define how to apply for and operate a private plan and how to administer claims.  I will be vocal in at the listening session and in my meetings with Commonwealth personnel.

KEY PROVISIONS OF MA PFML

High level, here are the key provisions of the MA PFML law:

Private plans.  Employers can meet their MA PFML obligations through a public plan administered by the Commonwealth or through a private plan for medical and/or family leave that offers benefits at least as beneficial to employees as the state plan.  The law also specifically recognizes that employers can obtain private insurance to cover their benefit obligations under a private plan.

 

Matrix can help!  We anticipate developing a model private plan to meet employers’ MA PFML obligations and assisting in administration once benefits go into effect starting January 1, 2021.  Many details are yet to be developed by the Commonwealth for such plans, so stay tuned.

 

Covered employers.  All employees of any size must comply with the law, although an employer with fewer than 25 employees in the Commonwealth is not required to pay the employer portion of the premiums.

Eligible employees.  An employee is eligible for leave benefits if he or she has been paid wages in the “base period” amounting to at least 30 times the weekly benefit rate.  The base period is the last 4 completed calendar quarters immediately preceding the first day of an individual’s benefit year.  Coverage includes benefits for former employees within 26 weeks of separation and independent contractors if the employee or contractor meets the eligibility requirement.

Funding.  The benefits will be funded at an initial rate of 0.63% of an employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not yet been apportioned between medical leave and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.  Employers can, of course, choose not to withhold premium from employee paychecks and instead pay the employee share themselves.

Benefit amount.  Weekly benefits are paid based on a percentage of an employee’s wages:

  • Wages equal to or less than 50% of the state average weekly wage (SAWW) will be paid at 80%
  • Any portion of wages in excess of 50% of the SAWW will be paid at 50%
  • Initially, benefits will be capped at $850 per week. Thereafter, benefits are capped at 64% of the SAWW,
    to be adjusted annually.

Paid leave benefits start dates.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (FMLA), which will run concurrently if both laws are applicable:

  • Employee’s serious health condition
  • Family member’s serious health condition
  • Bonding with a new child
  • Family military exigencies
  • Care for a seriously ill or injured service member

One difference employers will notice is that the list of family members for whom employees can take leave includes not just the employee’s parent, child, or spouse like FMLA, but also domestic partners, parents-in-law, grandparents, grandchildren, and siblings.  Any MA PFML taken to care for these additional family members will not count toward usage of the employee’s FMLA entitlement.

Leave duration.  Leave durations in a “benefit year” are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • An aggregate maximum of 26 weeks in a benefit year for all leave reasons

Benefit year.  All leave entitlements and usage are measured forward 52 weeks from the Sunday preceding the first day of the employee’s covered leave.  (Rolling forward, get it?)

Still geeking out?  Matrix held national webinars last year to help introduce and explain the Massachusetts PFML law.  If you can’t wait until the next round, you can do all your preparation here and be at the very front of the class!

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

A “Grand Bargain” – Massachusetts Enacts Paid Medical and Family Leave

Posted on: June 29, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Governor Charlie Baker signed a bill on June 28 making Massachusetts the seventh jurisdiction to enact paid family and medical leave (PFML).  The paid leave provisions are part of a so-called Grand Bargain between the state legislature and voters that was designed to keep several voter initiatives off the November ballot. 

Here are some key provisions:

Funding.  The benefits will be funded at an initial rate of 0.63% of employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not (yet) been apportioned between medical leave
    and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.

Paid leave benefits available.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (which will run concurrently in most cases):  Employee’s serious health condition, family member’s serious health condition, bonding with anew child, family military exigencies, and care for a seriously ill or injured service member.

Benefit amount.  Benefits are paid based on a percentage of an employee’s wages, with a cap of $850 weekly.

Leave duration.  Leave durations in a 12-month period are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • Aggregate maximum of 26 weeks in a 12-month period for all leave reasons

Voluntary plan.  Employers can meet obligations through the state plan or through a private plan(s) for medical and/or family leave that offer benefits at least as beneficial to employees as the state plan

Matrix will administer this leave law for clients: Watch this space for a more detailed summary of the new law in the next day or two. 

Existing PFML laws.  California, New Jersey, New York, and Rhode Island already have paid family and medical leave laws in effect.  In addition, Washington State’s PFML law will require premium payments starting January 1, 2019, and paid leave benefits starting January 1, 2020.   You can check out our prior summaries about Washington State here and hereWashington D.C. is next in the wings with premium payments starting July 1, 2019, and paid leave benefits starting July 1, 2020.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Massachusetts Enacts Pregnant Workers Fairness Act

Posted on: July 31, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

The move toward significant workplace protections for pregnant employees continues state by state.  On July 27, 2017, Massachusetts Governor Charlie Baker signed House Bill 3680 establishing the Massachusetts Pregnant Workers Fairness Act.

Massachusetts joins 15 other states and Washington, D.C. with similar protections for pregnant employees.  These laws typically provide protections well beyond existing protections under the Americans with Disabilities Act, in that they do not require the employee to be disabled by the pregnancy in order to receive a reasonable accommodation.

The Massachusetts Act, effective April 1, 2018, provides broad protections for employees and prospective employees who are pregnant or have conditions related to pregnancy.  Key provisions include the following:

Employers cannot deny an employee’s request for a reasonable accommodation due to an employee’s pregnancy or condition related to pregnancy, including lactation or expressing breast milk.

Employers must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations to enable employees to perform the essential functions of their jobs.

Employers can require documentation to support a request for a reasonable accommodation. The Act identifies a broad list of types of health care providers who can supply the documentation, including not just physicians but also a variety of other medical professionals, assistants, and therapists.

Documentation cannot be required for employee requests for: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The employer can deny an employee’s request if it can show that the accommodation would impose an undue hardship, defined as significant difficulty or expense. Factors to consider include the nature and cost of the requested accommodation, the financial resources, size, and facilities of the employer’s business, and the impact of the requested accommodation on the employer’s expenses, resources, or other impact on the employer’s business.

Employers cannot require an employee to accept an unnecessary accommodation, including a forced leave of absence.

The Act prohibits discrimination and retaliation against a pregnant employee or prospective employee in hiring and in terms and conditions of employment, or for requesting an accommodation.

Employers must provide written notice of employees’ rights under the Act, including the right to reasonable accommodations for conditions related to pregnancy. Required notices include a notice of the rights under the Act in an employee handbook, notice to all new employees upon starting employment, notice to existing employees on or before January 1, 2018, and notice to an employee within 10 days of notification to her employer of her pregnancy and/or her need to express breast milk for a nursing child.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.