Paid Family and Medical Leave Coming in 2021

Sherin and Lodgen LLP recently co-sponsored the Boston Bar Association’s first-ever Employment Law Conference on October 25, 2018.  Among the many new developments in the law discussed (including the new non-compete law and the latest impacts of the #MeToo movement) was the lesser-publicized “Grand Bargain” bill which, among other things, establishes a paid family and medical leave program beginning in 2021.

The new program will provide up to 20 weeks of paid medical leave for an employee’s own serious health condition, and up to 12 weeks of paid family leave (but no more than 26 cumulative weeks of leave in any given year) after which an employee may return to the same or an equivalent job with the same pay, status, and benefits.  Family leave may be used to care for a family member with a serious health condition, for bonding with a newborn child (or a child placed for adoption or foster care) within 12 months of the birth, adoption or foster care, as well as for a qualifying exigency related to a family’s member’s military service.

The program will be funded by a payroll tax amounting to 0.63% of employee’s wages beginning on July 1, 2019.  Employees eligible for and utilizing family and/or medical leave will receive a benefit rate based on a calculation involving the employee’s average weekly wage, with a maximum weekly benefit of $850.00.

In several respects, the program provides greater benefits and protections than those offered by the federal Family and Medical Leave Act of 1993 (“FMLA”).  For example, the Massachusetts law supplies a broader definition of “family” (including parents-in-law, domestic partners, grandchildren, grandparents, and siblings in addition to spouses, sons, daughters, and parents), and unlike the FMLA (which only applies to employers with 50 or more employees), there is no minimum number of employees for coverage.

The new law also prohibits employers from retaliating against employees for the use of paid family or medical leave, and, significantly, creates a presumption that any “negative change in seniority, status, employment benefits, pay or other terms or conditions of employment” within six (6) months of an employee’s return from paid leave is presumed to be retaliatory.  Any violations subject employers to treble damages, costs and attorneys’ fees.

The new law will be administered and enforced by the Executive Office of Labor and Workforce Development, which will promulgate regulations governing the program in the coming months.  Stay tuned.