Paid Leave

Massachusetts Paid Family and Medical Leave

 

Massachusetts Paid Family and Medical Leave Attorney

Now that 10/1/19 is behind us, we at Tempus Fugit Law thought it would be useful to summarize the Massachusetts Paid Family and Medical Leave law (MA PFML) both what is required of employers now, and what will be required when the law takes full effect in 2021.

Note:
Some individuals or employers, such as those in the railroad industry or those employed by churches or cities/towns, are exempt from the law. The MA PFML law applies to all other Massachusetts employees and employers. For this writing, "employees" and "employers" refer to those subject to the law's obligations and protections. If you believe you have been treated in a way that would violate the MA PFML, but you do not know if you qualify for protection under the law, contact us. Our contact information is at the end of this blog entry. Even if you do not qualify for protection under the MA PFML, you may be protected under another federal, state, or local law.

 

Current Requirements:

  • Notices. By now, every Massachusetts employer should have issued notices to every Massachusetts employee. This notice should include various details required by law, including the breakdown of contributions by the employee and the employer. While the law requires employers to contribute approximately half of the total contributions, some employers have elected to contribute more, up to 100%.

  • Posters. All employers subject to the law must also display a poster providing a summary of the law including your rights.

  • Contributions. In January 2020, all employers subject to the law will need to either have an exemption in place (requiring them to offer all Massachusetts employees the same or better benefits required by law), or they will need to make a contribution payment to the state. You may have seen a decrease in your paycheck already. Many employers are collecting this money to offset their eventual payment to the state.
 

Future requirements:

  • Paid Leave. Starting 1/1/21, all Massachusetts employees will have the right to take paid leave for a qualifying event or condition. This may include the birth of a child, adoption, being unable to work due to your own serious health condition, caring for a qualifying family member who is a covered service member with a serious health condition, or other reasons.
    • Weekly Amount. If/when you take paid leave, you will receive a portion of your regular wages, up to a maximum of the average weekly wages in Massachusetts at that time. Currently, that amount would be approximately $850.

    • Exemption. If your employer informs you that it is exempt from the law because it offers paid leave through private insurance or another means, you still have the same protections under the law. Your employer found a way to offer the same benefits at a lower cost, but your rights and the benefits afforded to you must be the same as those required by the law.

    • Length of leave. The number of weeks for which you are eligible depends on the reason for the leave. There is an aggregate cap of 26 total weeks per benefit year.
      • For your own serious health condition, you may take up to 20 weeks of paid leave.
      • To care for a family member who is a service member with a serious health condition, the maximum leave is 26 weeks.
      • The maximum leave related to the birth, adoption, or foster care placement of a child is 12 weeks.
      • Also capped at 12 weeks is leave related to a qualifying exigency arising out of a family member’s active duty or impending call to active duty in the armed forces.
 
  • Retaliation. If you are subjected to any negative treatment after requesting (or returning from) leave, there will be a presumption that your employer retaliated against you. For example, assume an employee is on intermittent leave for migraines and must call out of work 0-2 times each month. The employee's last absence due to a migraine is in March 2020. If the employer terminates the employee for attendance in August 2020, a court would presume the employer retaliated against the employee for taking leave under the MA PFML law. This presumption means the employer will need "clear and convincing" evidence that the termination was unrelated to the absence related to the migraine.
    • Note that any negative change can trigger the presumption of retaliation. The employee does not need to be terminated to have a claim for retaliation. A poor review, a reprimand, demotion, decrease in pay or loss of benefits, or other negative changes have the same presumption of retaliation.

    • If the employer cannot produce clear and convincing evidence to rebut the presumption, you may be able to recover treble damages (three times the value of your damages) plus your attorney fees and interest.

    • This presumption of retaliation will still apply to employers who are exempt because they have a private plan. So if you take paid leave and apply for disability payments from your employer's insurance company, you have job protection for 6 months after the end of your leave (or, if you are on intermittent leave, 6 months after each instance where you take paid leave).

  • July 2021. If you need to take a leave to care for a family member with a serious health condition, the leave would not be covered under the MA PFML until July 1, 2021.
 

Takeaway

If your paycheck amount has decreased so your employer can fund its share of this new law, or even if your paycheck is unchanged, be aware that your leave rights will change as of January 2021 (and again in July 2021). Many medical and family leaves are currently unpaid with many employers. But if the same leave is taken in 2021, the leave will be paid. The pay amount will not be your full paycheck, but it will provide some income during a challenging time in your life. And thanks to the very strong retaliation presumption in the MA PFML law, you should not face reprisal during (or for 6 months after) your leave.

Should you have any questions about the MA PFML law, or should you believe your employer has acted contrary to the law, contact the experienced and successful Employment Attorneys at Tempus Fugit

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