12.31.2020 | Articles

New Year’s Resolutions for Employers Under the Massachusetts Paid Family and Medical Leave Act

By Shannon M. Lynch

The Massachusetts Paid Family and Medical Leave Act (“PFML”) goes into effect tomorrow, New Year’s Day. Eligible employees can now use the Department of Family and Medical Leave online application portal to seek PFML benefits including:

  • Up to 20 weeks to manage the employee’s own serious health condition; 
  • Up to 12 weeks to bond with a child born, adopted, or placed in foster care in the past 12 months;
  • Up to 12 weeks to manage family affairs while a family member is on active duty overseas; and
  • Up to 26 weeks to care for a family member who is a covered Service Member.

As we happily usher out an exhausting and challenging 2020 and celebrate the long-awaited start of 2021, now is the perfect time to consider what steps your organization can take to best prepare for employees seeking paid leave benefits under the new law.

  1. Hang the Updated PFML Poster. Make sure you have hung or distributed the updated, required PFML Poster, which is here.
  2. Confirm Receipt of a PFML Notice Acknowledgement from Each Employee.  Employers are required to provide an individual PFML notice, which is a separate requirement from the poster. The required PFML template notice can be found here. It may be provided electronically, but it must include the opportunity for an employee to acknowledge receipt or decline to acknowledge receipt of the information. You are required to document an employee’s failure to acknowledge the PFML notice. In the event that an employee fails to acknowledge receipt the PFML notice, the Department will consider an employer to have fulfilled its notice obligation if it can establish that it provided to each member of its current workforce notice and the opportunity to acknowledge or decline to acknowledge receipt.
  3. Implement a Written PFML Policy. The Department will not be issuing a template policy for employer use, at least in part, because employers have some flexibility in how they want to implement PFML benefits. To best protect your organization and educate your workforce, prepare a written PFML policy.
  4. Update Related Existing Leave Policies.  Your vacation, sick, and other paid leave policies need to be consistent with your PFML policy and the law. For example, an employee who chooses to use accrued paid leave under an employer’s policy, cannot receive any paid PFML benefits during that period. Since an employer is required to inform an employee that PFML benefits run concurrently with the accrued paid leave, consider adding this to your vacation/PTO and PFML policies.
  5. Consider PFML Request Forms. Employees are required to provide at least 30 days’ notice of a PFML benefit request, if practicable, to the Department. Further, the employee must notify the employer before the Department. Determine how you want employees to provide such notice and then communicate it.
  6. Update Job Descriptions. While job descriptions are a constant source of angst for HR professionals, consider creating or updating job descriptions in 2021. With each employee’s PFML benefit application, the Department will require the employer to provide a written job description for the requesting employee within 10 business days of the Department’s request.
  7. Determine Whether to Use Fitness-for-Duty Certifications. Employers can make a fitness-for-duty certification a condition of an employee’s return to work if the PFML leave is related to the employee’s own serious health condition. However, an employer must have a uniformly-applied policy or practice for similarly-situated employees and must provide an employee with a written job description and notice of the fitness-for-duty requirement within 10 business days of the Department’s notice of leave approval.
  8. Add a reference to the PFML in Settlement and Severance Agreements. The PFML’s prohibition on discrimination and retaliation includes a six-month presumption of retaliation that can only be rebutted by an employer’s clear and convincing evidence that it had independent justification for a negative change in an employee’s seniority, employment benefits, pay, or other terms or conditions of employment. Employers should seek a release of an employee’s potential discrimination or retaliation claims under the PFML.
  9. Train Managers. In addition to understanding your organization’s approach to PFML leave including related policies, managers should be trained on the six-month retaliation presumption. Among other things, managers should understand the heightened importance of documenting employee performance issues and complying with the Massachusetts Personnel Record Statute.
  10. Develop a Comprehensive PFML Strategy. Work with your employment counsel to develop a comprehensive and effective PFML strategy.

This communication is for informational purposes only and should not be construed as legal advice on any specific facts or circumstances.

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