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Massachusetts Paid Family & Medical Leave: Thinking Ahead

Published:  February 19, 2019

Over the past few months, Massachusetts-based employers have been inundated with information about the upcoming Massachusetts Paid Family & Medical Leave requirements. Unfortunately, this deluge of information has done little to answer employers’ questions. To date, most of this information has been speculative or otherwise subject to change before implementation. In fact, the most helpful information thus far, the new Massachusetts Department of Family and Medical Leave’s draft regulations, has only given us an idea of what the program will probably look like. These draft regulations are just that: a draft. They are subject to change prior to the issuance of final regulations.

However, there are some things we do know for sure, because they were contained in the actual legislation. One of the things we do know is that the Paid Family and Medical Leave benefit year will be defined as a “period of 52 consecutive weeks beginning on the Sunday immediately preceding the first day that the job-protected leave under [the law] commences for the covered individual.” This means that, for the purposes of determining remaining leave eligibility, the relevant amount of leave is calculated by looking at the individual employee’s last year on a rolling basis.

This method of defining a “benefit year” departs from federal Family and Medical Leave. Unlike the state Paid Family and Medical Leave, federal Family and Medical Leave allows employers to choose between four options for defining the “benefit year.” Under the federal FMLA, employers may define the benefit year as:

1)      The calendar year,  i.e. January 1 to December 31 of each year;

2)      Any fixed 12 month period, i.e.,  a fiscal year, the anniversary of an employee’s start date, etc.;

3)      A 12 month period measured forwards, i.e., the 12 months immediately following the employee’s first date of FMLA leave; or

4)      A “rolling” 12 month period measured backwards, i.e., the 12 months immediately preceding the date an employee uses any FMLA leave.

This fourth option is similar, albeit not identical, to the Mass. Paid Family and Medical Leave’s calculation of the “benefit year.”

If employers are covered by federal FMLA and already using method 1, 2 or 3, it may be advisable to change their calculation of the benefit year to match the new state PFML for each of administration. However, currently, there is no way to consistently synch up the two leave standards.

This is because the state PFML defines the “benefit year” as the “period of 52 consecutive weeks beginning on the Sunday immediately preceding the first day that the job-protected leave under [the law] commences for the covered individual.” The federal FMLA doesn’t have the “Sunday immediately preceding” language. Under federal regulations, the calculation is “A ‘rolling’ 12-month period measured backwards from the date an employee uses any FMLA leave.”

This will create a big problem. Even if you change your current federal FMLA benefit year to a rolling period looking backwards, you still will not be able to synch it up with the state PFML.

For example:

Let’s say an employee takes leave that is covered by both federal FMLA and state PFML on Friday, December 31, 2021. Under the federal FMLA, the “rolling” 12 months period would be Friday, January 1, 2021 to Friday, December 31, 2021. However, under the state PFML, the “rolling” 12 month period would be Sunday, December 27, 2020 to Sunday, December 26, 2021. These periods won’t synch up just because of the “Sunday immediately preceding…” language of the state statute.

This is to say nothing of the fact that the statute isn’t clear about leave beginning on a Sunday. Let’s say an employee begins covered leave on Sunday, December 26, 2021. The “Sunday immediately preceding the first day that job-protected leave [under the state PFML] commences” would theoretically be Sunday, December 19, 2021.

Unfortunately, this obstacle doesn’t have an easy fix. As referenced above, unlike the draft regulations, the state’s definition of “benefit year” is written into the statute. Therefore, the finalized Department of Family and Medical Leave can’t fix this problem in the final regulations. Because it is written into the statute, it would require the state legislature to pass a law amending the statute itself.

The good news is there is still some time. The calculation of “benefit year” won’t become relevant until leave benefits become effective. Unlike employer contributions to the program that begin in July 2019, the employee benefits don’t become effective until January 1, 2021. This means there is still almost two years to convince Massachusetts legislators to pass a bill fixing this problem.

If you have any questions regarding this topic, or any aspect of labor and employment law, please contact the attorneys at Royal, P.C.