by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
April 29, 2019
I had just exhaled after presenting our Massachusetts Paid Family and Medical Leave (PFML) webinars on April 23-24when 
the Massachusetts Department of Family and Medical Leave unleashed a barrage of new information, guidance, and resources. You may have heard my plaintive cry, “Make it stop!”
But it hasn’t stopped and so here we are with more updates for you. If you
missed our webinars, you can get up to speed from our prior blog post,
which includes a link to our webinar deck.
CLICK ON MR. RADAR TO VIEW APRIL 24, 2019 BLOG
Counting workers for the under-25 exemption from employer premiums
Employers using the public plan to provide PFML benefits and with fewer than 25 Massachusetts covered workers are exempt from
paying the employer share of medical leave premiums to the Commonwealth’s trust fund. If your workforce is near this number,
it is important to know how to count your workers for this exemption. The draft regulations (section xx.05) direct you to count the number of employees on the payroll “during each pay period and dividing by the number of pay periods” but do not state over what period of time to do this averaging.
New materials released by the Department of Family and Medical Leave (DFML) on Friday now clarify that you consider your number of workers per pay period to get an annual average, based on the prior calendar year for the current calendar year. And remember, covered workers for this count includes both regular employees and 1099-MISC workers if those contractors constitute more than 50% of your total workforce.
The new posting from the DFML can be found at https://www.mass.gov/info-details/counting-the-covered-individuals-in-your-workforce-under-the-pfml-law.
Private plan exemptions
Also in the new materials released by DFML is an entire page with ancillary materials devoted to the private plan exemption, whereby employers can apply for approval of their own paid medical and/or family leave plan rather than having employee leaves administered by DFML. The new resources include a walk-through of the application process complete with a video demonstration of an online application. Important points to note:
- You will need to log on to MassTaxConnect to start the application process. If you don’t already have an account,
there is a link for registering. - After providing basic company and contact information, you will answer a series of yes/no questions. The
questions are designed to determine whether your plan is compliant with the PFML requirements. - Next is an opportunity to upload any supporting documents. Interestingly, the tutorial and the online application
(to the extent I could read it!) does not specifically require a copy of your plan but certainly the plan itself would
constitute supporting materials. The application website allows you to upload more than one document so
if your plan is contained in multiple documents you have the ability to include all. If you are having a TPA
such as Matrix submit the application for you, a signed statement providing the necessary authority would
be important to include. - After completing your application, you will be notified within 1-2 business days of the status of your plan. If
the plan is not approved, you will have a chance to request further review by the DFML.
The new materials can be accessed here: https://www.mass.gov/info-details/exemptions-from-paid-family-and-medical-leave-for-private-plans
Employer Notices to Employees
With the upcoming employer notice requirements (posters and individual worker notices) came a lot of questions.
To recap:
- Employers must post a general notice of employee and contractor rights and responsibilities under the PFML
law in the workplace, meeting certain language requirements. This posting should be done immediately. - Employers must provide individual notices to employees and contract workers in their primary language and
receive an acknowledgment from each worker by May 31, 2019. That last part is a new clarification – see
the discussion below. - We provided more detail on these notices in our blog post here, including a link to our webinar deck.
Here’s what we have now learned from the DFML, via a response from the Director to my email questions:
- The May 31 deadline applies both to giving the notice AND receiving the acknowledgements. The PFML statute
doesn’t address employers’ notice obligations to current individual employees, but the DFML has now set the
May 31 deadline for employers to both provide the notice and receive the acknowledgments (or refusals) from
existing employees. This is 30 days in advance of when withholding from worker paychecks will begin on
July 1 (if the employer is not covering the employee share of PFML premium contributions). - That acknowledgement form and the odd refusal to acknowledge. The statute requires employers to provide
individual notices and an opportunity for workers to either acknowledge receipt of the notice or decline
to acknowledge receipt in writing. The DFML does not plan to provide a form for use if the employee refuses
to acknowledge receipt of the notice. Here is what came out of my brain to fill this requirement.
(Note this is my best guess and I cannot promise whether the DFML would find it sufficient):
EMPLOYEE STATEMENT DECLINING TO ACKNOWLEDGE RECEIPT OF NOTICE
I decline to acknowledge receipt of the Employer Notice to Employee relating to my Rights and
Obligations under the Massachusetts Paid Family and Medical Leave Law, M.G.L. c.175M.
I understand my employer will retain a copy of this statement.
__________________________________________________________________________________________
Signature
__________________________________________________________________________________________
Print Name
__________________________________________________________________________________________
Date
- Evidence of Employer Compliance. The DFML declined to provide any guidance regarding what will constitute
sufficient evidence that you provided the correct notice and opportunity to acknowledge or decline if the
employee refuses to do either. My suggestion is to use a reasonable means that is designed to get actual
notice to each employee individually. Consider:- Regular mail to the employee’s current home address with a log to substantiate the mailings (as we know,
recipients often refuse to accept certified delivery) - Electronic delivery to the employee’s known functioning email with a means to produce a copy of the email
sent (again, employees may decline to provide a read receipt) - Hand delivery to the employee by someone who keeps a log of date, time, and other facts of each delivery
- Regular mail to the employee’s current home address with a log to substantiate the mailings (as we know,
Don’t just leave a stack of the forms in the lunchroom or tell all employees generally to check it out on your intranet.
- Individual notice in employee’s primary language. The DFML says this is a requirement even if it has not yet
provided a translation in the language you need for an employee. At the time of our webinars, the notices to
W-2 employees and 1099-MISC workers were available in 5 languages plus English. However, as of Friday the
notices are now available in 13 languages on the DFML website here. - Compliance with posting notification for teleworkers. There is no provision in the PFML statute for electronic
“posting” as there is for electronic individual notices. I asked the DFML, could the employer put the poster on its
intranet accessible to employees, or email it to remote workers? The DFML agreed these are reasonable
options. Consistency with your process for other electronic employee notifications would be a good thing as
long as it is an effective means of giving notice. - Changing your decision whether to withhold employee premium contributions from paychecks. If an
employer states on the notice form that it will not withhold contributions from employee paychecks, the
DFML says the employer can change this decision later. But, plan to provide a new individual notice to
employees and contractors, including obtaining those acknowledgements or refusals. Thirty days’ advance
notice of the change sounds like a good plan to me, although nothing in the law requires that. And the
same applies if you initially withhold employee contributions and then decide you will no longer do so.
Matrix is on it! Stay tuned to this blog for all the news on Massachusetts paid family and medical leave developments other in other states. And when time permits, we’ll cover some non-PFML issues, too!