By: Karen A. Whitley
January 4, 2021
After more than a year of making contributions to the Family and Employment Security Trust Fund, Massachusetts employers and workers have entered the next phase of the Massachusetts Paid Family and Medical Leave (“PFML”) program. Despite the long lead-up time and the substantial information already published by the Department of Paid Family and Medical Leave (“DFML”), the PFML process is still being clarified. As recently as December 21, 2020, the DFML updated its regulations, introducing some new rules about child bonding leave that could catch employers off guard.
Under the PFML, eligible workers may begin taking paid, job-protected leave for several qualifying reasons as of January 1, 2021. Employees will be able to take up to 12 weeks of leave to bond with a new child or for a qualifying military exigency, up to 20 weeks for a personal serious health condition, and up to 26 weeks to care for an injured servicemember. Leave benefits to care for a sick family member become available in July, but in total, an employee will be able to take up to 26 weeks of paid leave in a 12 month period.
Given that PFML benefits did not become available until January 1st, it was reasonable to think that the event giving rise to the need for leave would also have to occur on or after January 1st. However, the DFML’s emergency regulations explain that an event in 2020 can be the basis for taking leave in 2021.
Specifically, the new regulations clarify that, even though no benefits are available until January 1, an eligible employee (or other covered individual) can take paid leave in 2021 to bond with a child who was born, adopted, or placed in foster care in 2020. This is because the PFML statute allows bonding leave to be taken during the first 12 months after the child’s birth, adoption, or foster care placement. According to the regulations, employees who are otherwise eligible can take family bonding leave in 2021 for a 2020 birth or adoption, as long as the leave is completed within 12 months of the birth or adoption event, and is completed during calendar year 2021. The DFML has provided the following example: “for a baby born on April 1, 2020, each parent would be eligible to take up to 12 weeks of family leave to bond with their child beginning on January 1, 2021, until the baby’s first birthday on April 1, 2021.” The emergency regulations do not directly address whether an employee who took all available parental leave in 2020 under the Massachusetts Parental Leave Act (8 weeks) and/or under the federal FMLA (12 weeks) can now take paid leave for the same event in 2021, but the DFML’s website does say that the full PFML leave is available in 2021 “regardless of the duration or type of leave taken in 2020.” Employers will have the ability to notify the DFML of previously-taken leave when the employee submits a leave request to the DFML.
The DFML has acknowledged that, during the COVID-19 pandemic, allowing employees to take up to 12 weeks of bonding leave in 2021 for a prior birth or adoption could have a significant impact on staffing levels at hospitals at a critical time. For this reason, the emergency regulations make an exception for all acute care hospitals in Massachusetts. Under the updated regulations, an employee of an acute care hospital who is eligible for family bonding leave for a 2020 birth, adoption, or foster care placement may ask that the 12 month period to take the leave be extended, as long as the leave is completed by December 31, 2021. In the above example, then, the employee would not have to take leave by April 1, 2021, but could take the leave in the summer or fall of 2021. This extension does not give employees more leave time, but allows employers and employees to collaborate to manage the job-protected leave time in a way that will be less disruptive to health care operations. A hospital is allowed to ask employees whether they plan to ask for an extension, to help the employer anticipate staffing needs. On the other hand, a hospital is allowed to deny an employee’s request to extend the 12-month bonding leave deadline in its discretion.
Under the PFML regulations, workers must tell their employer about their intent to take a PFML leave before they submit their application for paid leave benefits to the DFML. The DFML will reject an application if the employee hasn’t notified the employer. And, employees are supposed to give 30 days’ notice if their need for leave is foreseeable. If employees haven’t already told their employers that they plan to take family bonding leave for a 2020 event, employers will have some lead time and should not face a flood of absences for bonding leave in January.
The DFML has left the door open to help other employers avoid “unmanageable risk of disruption to operations” if multiple employees want to take family bonding leave for 2020 births, adoptions, and foster care placements. Any employer who has significant staffing concerns when faced with a bonding leave request can submit a written request to the DFML and ask for more flexibility in the 12-month bonding leave timeframe. The DFML will consider the impact of multiple bonding leaves on the employer’s operations and will decide whether it “presents a risk to public health and safety or is otherwise contrary to the public interest.” In that case, the DFML may extend the time that employees can take the leave further into 2021.
The DFML has published a great deal of information on its website, in its regulations, and in email alerts to help employers and employees understand their rights and obligations under the PFML. Employers should already have distributed notices and posters to give employees an overview of the PFML. As we head into this next phase, companies should be considering updates to their handbooks to include more robust PFML policies and to explain how the process of taking leave will work and how it will interact with the employer’s sick, vacation, short-term disability, and other programs. Sheehan Phinney’s employment group is available to assist with any questions as the long-anticipated PFML becomes a reality.