by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
July 23, 2020
The Massachusetts Department of Family and Medical Leave (DFML) has released its much-anticipated revised, final regulations for its Paid Family and Medical Leave program. Employees will start receiving paid leave benefits on January 1, 2021.
Huh? Much-anticipated regulations? Well, that speaks volumes about my world – welcome to it! The regulations are actually critical to understanding the MA PFML law and how Matrix as a Third Party Administrator (TPA) and Reliance Standard as a PFML insurer will administer private plans in Massachusetts. But don’t get too excited, not all questions are answered. The final regulations can be downloaded here.
If you need to catch up, you can review our various prior blog posts on Massachusetts PFML by searching for “Massachusetts” in the search box. There have been many updates over the past couple of years. A key post is this summary of the law itself from June 2018. The funding contribution rate and start date for contributions changed (now 0.75% and October 1, 2019) but the basics are the same as to leave reasons, durations, etc.
So what’s up? Here is a rundown of some of the key sections of the regulations, including both prior and new provisions. Remember, the statute and the regulations talk in terms of “covered individuals” and “covered entities” but for convenience, we are using “employee” and “employer” in this post.
Private plans. §2.07. As with the original regulations, the new version has a lot of details about the private plan exemption from participation in the state program. Not a lot changed.
One interesting addition is a requirement for a private plan to offer an internal appeals process before the employee can appeal a denial to the DFML. The only real detail in the regulations is that the process must allow the employee at least 10 calendar days from the receipt of the notice of denial to submit that internal appeal.
Both Matrix and Reliance Standard offer private plans for our clients who prefer to have their employees’ absences administered through a TPA (self-funded plan) or carrier (insured plan) rather than let the state do it. We are ready to provide assistance to our employer clients throughout the private plan application process, implementation, and administration. Contact your account manager for details.
Serious health condition. The definition of serious health condition has two significant changes:
- Telehealth permitted.§2.02(2).For continuing absence plus treatment, the requirement for treatment by a health care provider means an in-person visit or a “telehealth” visit.A significant development, probably spurred on by the current pandemic.
- Substance abuse treatment.§2.08(10).The new regulations state that substance abuse may be a serious health condition and allow coverage for substance abuse treatment but not for absences resulting from the employee’s use of the substance.
Employee application. §2.08(4). The regulations have robust provisions regarding the documentation an employee must submit to support a leave request. The employee’s application must include, among other things:
- Whether the request is for medical or family leave
- The start date and expected duration of the leave
- Whether the leave will be intermittent or continuous
- Evidence that the required notice of leave was given to the employer (30 days in advance or as soon as practicable – §2.08(2))
- Any denied, granted, or pending request for leave for a qualifying reasons from the employer during the last 12 months
- An attestation of family relationship for family leave benefits
- A certification appropriate to the nature of the leave (e.g., from a health care provider for medical or family care leave).The required contents of each certification are fully described in §2.08(5) of the regulations
Delay in application. §2.08(4)(h) and (5)(a). Echoing a provision in the statute, the regulations provide that if an employee fails to submit or complete an application within 90 days of the start of the leave, the employee may receive reduced benefits. This is problematic because it could leave an employer in limbo for over 90 days (add in processing time!) as to whether an employee’s absence is approved by the DFML and therefore job protected. And there is no guidance on how much of a reduction the employee may receive, or if benefits could be denied entirely due to the late filing. And of course, there is a good cause exception to the 90-day limit.
Information provided to employers. §2.08(2)(f). In a marked and welcome change from another state that recently implemented paid family and medical leave (guess who?) the regulations require the DFML to provide employers with significant information within 5 business days after an employee applies for benefits under the state plan:
- The type of leave (medical or family)
- Expected duration
- Whether request is for continuous or intermittent leave
- A copy of the employee’s certification (Woo hoo!This will be really helpful to employers.)
- “Any other information relevant to the application”
Employer response. §2.08(6). Once notified of an employee’s application for benefits, the employer must respond to the DFML within 10 business days (up from 5 in an earlier draft) with information including:
- The employee’s wages, position, and hours worked
- Prior requests for or approval of leave for a qualifying reason and the amount of paid leave taken for a qualifying reasons during the employee’s benefit year
- The employee’s paid leave policies
- Whether the employee has applied for concurrent FMLA or other leave and whether the employer has approved the application
- Whether the employee will be receiving any other wage replacement benefits
- Any other information or records relevant to the claim – including any evidence that the claim may be fraudulent (prior denied vacation, anyone?)
Time frame for processing claims. §2.08(7). The DFML (and presumably private plans also) has 14 calendar days from the filing of an application to approve, deny, or ask for more information from the employee or employer. After approval, the DFML has 14 calendar days to make the initial payment of benefits (unless the leave hasn’t started yet).
Employer/designee ability to filed claim for employee. §2.08(9). In what we perceive as good news, the regulations allow an employee or its designee (read: TPA or insurance carrier) to file a PFML claim with the DFML on behalf of an employee. The employer or designee must be approved by the DFML to do so. There is very little detail on this yet and we will be working with the DFML to understand and develop the process and requirements. In our view, this may allow Matrix to be the one-stop-shop for Massachusetts employees filing claims even if we are not administering a private plan for the employer. More to come, as we look into this excellent possibility for greater services for our Massachusetts clients.
Approval notice to employer. §2.09. The regulations recite the factors the DFML can consider in approving or denying a claim, which basically mirrors the information required in the employee application (see above). Once a claim is approved – and this is really big – notice goes to both the employee and the employer that includes:
- The reason for the approved leave
- The duration of approved leave
- For intermittent leave, the frequency and duration of leave and benefits
- Expiration of leave benefits
- Weekly benefit amount – enabling Matrix or RSL to take the appropriate offset against a concurrent STD policy, if applicable.
Fitness for duty after leave. §2.11. The regulations allow employers to obtain a general or specific fitness-for-duty note from the employee’s provider. The process and employer rights are very similar to those under the FMLA, so employers who require FFD notes will be familiar with the process and limitations. See 29 C.F.R. § 825.312.
Multiple employers. §2.12(4). In a completely new provision, the regulations now specify that an employee with multiple employers is not required to take PFML from each employer during a single period of leave. Thus, an employee could take leave from his day job to care for his ailing mother but still work his night or weekend job. Or, an employee with a shoulder injury could choose to take leave from her physically demanding job but not from her second job as a bookkeeper.
PFML interaction with other leave benefits. MA PFML will run concurrently with several other leave types, both paid and unpaid:
- Other state and federal leaves.§2.01(3).MA PFL runs concurrently with leave taken under other applicable state and federal leave laws including the Massachusetts Parental Leave Act and the federal Family and Medical Leave Act, when the leave is for a qualifying reason under eitherof those acts.It appears that Massachusetts Paid Sick Time will also run concurrently with PFML to the extent leave reasons converge, as the PST regulations specifically provide it “will run concurrently with time off provided by . . . other leave laws that may allow employees to make concurrent use of leave for the same purposes.”940 CMR §33.01(3).
- Other employer paid leave policies.§2.12(8).Employees who use accrued paid leave or leave through an extended illness leave bank program provided by the employer will not receive PFML paid leave benefits but the time used will run concurrently with available leave under PFML.Employers must give employee notice of this concurrency.
“Extended illness leave bank” is defined as a voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under the PFML program. §2.02.
Employer reimbursement. §2.12(9). Employers using the state plan can be reimbursed by the DFML Trust Fund for any benefits they pay for a PFML-covered leave from a temporary disable policy, a paid family or medical leave policy, or an extended illness leave bank. To be reimbursable, the payments must be from a program separate from and in addition to a typical accrued paid time off policy.
Intermittent/reduced schedule leave. §2.13. Intermittent leave or reduced schedule leave is permitted as follows:
- Bonding – with employee and employer agreement only
- Care for a family member or injured service member – as medically necessary
- Military exigencies – as needed for the reason for the leave
- Employee’s own serious health condition – as medically necessary for the condition and for treatments.The employer and employee have an obligation to attempt to schedule such leave for times that meet the employee’s needs without unduly disrupting the employer’s operations.
Leave must be allowed in increments consistent with the employer’s policy for accounting for other types of leave, but the DFML will only pay in increments of 15 minutes or greater, and will not pay until the employee has accumulated 8 hours of leave time unless more than 30 days has passed since the initial taking of such leave. §2.02.
Job protection. §2.02, §2.16. The MA PFML law and regulations provide several aspects of job protection for employees:
- Reinstatement.An employee who has taken PFML leave (including leave under other policies that runs concurrently with PFML) is entitled to reinstatement to the employee’s same position prior to leave or to an equivalent position with the same status, pay, employment benefits, length-of-service credit, and seniority as the employee’s prior position.An employer can still terminate an employee who has taken leave pursuant to a legitimate layoff/reduction in force or for cause – but get advice of counsel first in both circumstances!
- Retaliation.An employer cannot threaten or retaliate against an employee by discharging, firing, suspending, expelling disciplining, threatening, or otherwise discriminating against an employee for (1) exercising any right the employee is entitled to under the PFML law or (2) filing a complaint or participating in any way in a proceeding under or related to the PFML law.
However, an employer can discipline an employee who has exercised leave rights for (1) failing to comply with the employer’s reasonable attendance and call in procedures; (2) failing to work with the employer to take intermittent leave at times that do not unduly disrupt the employer’s operations; (3) failing to take intermittent or reduced leave during the time the employer and employee agreed; and (4) failing to return to work following expiration of approved leave.
- Presumption of retaliation.Any negative change in an employee’s terms or conditions of employment within 6 months after taking leave or participated in proceeding related to the PFML law is presumed to be retaliation against the employee that the employer can overcome only by showing the employer had sufficient independent justification for taking the negative action and would have taken the action even if the employee had not taken leave or participated in a proceeding.A “negative change” does not include trivial or subjectively perceived inconveniences that affect de minimas aspects of the employee’s work.This means employers need to train supervisors on employee rights under MA PFML before leaves start on January 1, 2021!