The Massachusetts Paid Family and Medical Leave Listening Sessions
Spring attended the listening sessions in Boston and Springfield where employers and their advocates provided constructive feedback to the proposed Massachusetts Paid Family and Medical Leave (“MA PFL”) regulations, a draft of which was released in late January. We gained a lot of insight into the proposed plan, its gaps and possible hurdles to its approval, and we wanted to share with industry professionals who were unable to join.
To set the tone, those sharing their questions and identifying areas that require clarification were thoughtful and balanced in their approach. Many voiced their concerns after an introduction that included appreciation for the core tenants of the statute. Top-of-mind was a struggle with the lack of guidance around the exemption process, clarification on definitions and administrative complexities. As an advisor in this field, who has worked with employers to implement paid leave in other states, multi-state employers were definitely highlighting provisions that have proven to be an ongoing challenge with other state paid leave programs.
At each session approximately twelve individuals submitted verbal commentary. Although the Boston commentary was primarily from attorneys representing smaller employers that are struggling to implement the regulation, the Springfield representatives were primarily from employers and represented groups of all sizes. The representatives from the Commonwealth were in listening mode, diligently taking notes and occasionally asking for clarification on the comments. Feedback could be summarized into five primary categories, which we will further elaborate on:
- Exemption process and impacts
- Certification process, including retaliation and appeals
- Coordination with employer policies
- Taxation and cost considerations
- Organizations were looking for additional clarification on the definition of domestic partner, qualifying reason and increments of time. The goal was to refine them to be more specific and, where possible, more in line with the federal regulation. Similarly, for any time tracking (i.e. 90 days for certification, 6 months for retaliation) employers are seeking more specificity around when the clock begins.
- Within the regulations there is a reference to providing information related to an employee’s position; clarification was requested on what that represents. For example, will a job description suffice or will physical demands be required?
- When considering the exemption process, employers want to better understand the definition of equivalency.
- The regulation leverages 1099’s as a point of reference for “employees”, however many spoke about 1099’s not being the best assessment and the need for additional consideration to be given to defining employees.
- The group was curious as to how the look back provision will work in the first year.
- Employers are anxious for more information related to the exemption process, especially private plan requirements. Questions centered around how vendors will be approved and leveraged, what reporting will be required, and what will the bond process entail. The timeline of the process was also discussed with particular interest in what happens to contributions from July 2019 – January 2021 (assuming exemption if approved) for exempted employers.
- The sharing of wage information was of concern to many speakers, including both process and timelines.
- The certification process prompted dialogue around expanding the list of who can certify time. In addition, extensions on certifications were identified as administratively complex under the draft regulations, as notice requirements may be compromised if employers are waiting for employees to see their provider before certifying an extension.
- Given the timeline for certifications, employers raised concern over protecting time before an actual approval is made. Similarly, when no claim is filed, how and when can an employer take action?
- The retaliation provision was an issue for many. Advisors and employers are seeking additional guidance in order to limit their potential liability.
- Although appeal details are unclear, it is believed that an appeals process will exist in the final regulations.
Coordination with ER Policies
- In the current state, employers are required to allow employees to continue to earn time while on leave; however, if earned time off is based on hours worked, what will be the requirement?
- Some employers questioned how this leave will coordinate with complex policies related to time off. For example, if an employee must work the day before a holiday and/or the day after a holiday to receive holiday pay, how will that impact employees that leverage MA PFL? Will employers be able to maintain those provisions, or will MA PFL not allow for those constraints?
- Coordination with workers’ compensation was highlighted as an area needing additional thought. Similarly, how the regulation would impact an employer’s ability to explore restrictions and accommodations during leave could be negatively impacted.
- Employers noted that a feature of the FMLA that could be transferred to MA would be to ensure employees that have no intent to return to work are not given paid time arbitrarily.
Taxation and Cost
- Although the cost of the program including staffing and health care premium dollars were mentioned, we do not expect any sweeping changes. However, there may be an opportunity to add language that specifies if any costs can be recouped, especially if employees do not return to work.
- A handful of people spoke about the need for clarification surrounding how the contribution will be calculated.
- Taxation of the contribution as well as the earned income was a worry and requires resolution.
The Commonwealth seems to be setting a strong foundation by openly seeking feedback from its constituents and giving themselves a long runway, which we hope and expect will assist in a smoother roll out than experienced by other states. In addition to the listening sessions there is a lot of work going on behind the scenes develop the infrastructure. In February, they will be seeking feedback on digital tools they are developing to help employers understand the impacts of the law. It is expected that this will also include contribution calculators and other tools.
Employers who did not attend the sessions should feel welcome to attend a session in the future submit written comments for consideration. Written presentations may be sent to MassPFML@Mass.gov. The Commonwealth will be used to refine the next draft of the regulation. Although responses can reference the statute, changes to a passed statute are unlikely; however, the regulations supporting that statute and providing further details can provide necessary clarification to ensure the MA PFL can be managed with limited ambiguity. Spring will continue to follow the MA PFL; if you would like to submit commentary please contact us at firstname.lastname@example.org or email@example.com.
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