Proposed Amendments to the Massachusetts Paid Family Medical Leave Regulations

In just a few months, beginning on January 1, 2021, most Massachusetts workers will be eligible for paid family and medical leave under the Paid Family Medical Leave Law (the “PFML”).

In May 2020, perhaps somewhat lost in the more immediate COVID-19 crisis, the Department of Family and Medical Leave (the “Department”), published proposed amendments to their previously issued regulations.  Highlighted below are several of the key provisions of the proposed amendments specifically impacting the rights of Massachusetts workers:

• Independent Contractors: The proposed regulations clarify that properly classified Independent Contractors will not be eligible for covered leave, formalizing previous guidance from the Department.
• Private Plan Exemptions: To the extent an employer seeks a private plan exemption to the PFML, the private paid family and/or medical leave plan must include all qualified employees as well as covered contract workers and former employees, and may not be applied to only a portion of the workforce.
• Anti-Retaliation Protections: Under the PFML, any “negative change in seniority, status, employment benefits, pay or other terms or conditions of employment” during an employee’s leave or within six months thereafter creates a presumption of retaliation. In balancing this presumption, the proposed amendments provide that a “negative change” shall not include “trivial or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work.”
• Calculation / Reduction of Benefits: The proposed amendments also expand the categories of required offsets to the weekly benefit amount provided under the PFML. Specifically, the proposed amendments extend such reductions beyond governmental disability, unemployment, and workers’ compensation benefits, as well as permanent disability policies of employers, to include “any wages received from another employer or covered business entity or through self-employment.”

The full slate of proposed amendments includes much more and can be found here. If you have specific questions or concerns about your rights to family or medical leave, we encourage you to seek the assistance of counsel. We will continue to follow and report on the PFML as the Department’s proposed amendments are finalized.