Beginning in July 2019, Massachusetts employers must be aware that employees are now entitled on an annual basis to receive medical and family leave of up to 26-weeks each year.  Under the Massachusetts Paid Family Medical Leave Act (MPFLA), employees are entitled to leave of up to 20-weeks for an employee’s own health condition, and family leave of up to 12-weeks to care for family members.  In addition, qualifying employees may use leave under the MPFLA to bond with a child as well as for leaves associated with a family member’s military service. 

The MPFLA shares many similarities with the Federal Family and Medical Leave Act (FMLA); however, the MPFLA has some key distinctions that afford most Massachusetts employees greater protection than the FMLA provides. While the federal law applies only to employers with 50 employees or more, the MPFLA applies to all private Massachusetts employers regardless of size.  Massachusetts employers should begin taking compliance steps with the MPFLA now.  

Similarities between the MPFL and the FMLA

• The MPFLA, like the FMLA provides for job-protected leave
• Just as in the FMLA, MPFLA applies for an employee with a “serious health” condition or a family member with a “serious health” condition    
• The definition of “serious health condition” is the same under both federal and state law
• Both laws may be used to bond with a child in connection with childbirth, adoption or foster care placement

Key Differences between the MPFLA and the FMLA

• However, unlike the FMLA, the Massachusetts act provides for paid leave.  Although the “paid leave” portion of MPFLA will not take effect until 2021, payments will be based on an employee’s average weekly earnings, with a maximum amount of $850 per week.  The first seven calendar days of leave are not paid, but an employee may use sick or vacation time during this period.
• In addition, the MPFLA provides for more time off than the FMLA.  The FMLA only provides a maximum of 12 weeks of leave, whereas the MPFLA requires Massachusetts employers a maximum of 26-weeks of leave.
• The MPFLA also imposes stricter standards regarding termination after the end of the leave period.  Under the FMLA, an employer may choose to terminate the employee if there are grounds unrelated to the FMLA leave or where the employee is a “key employee.”  However, the MPFLA, prohibits retaliation against employees who exercise their rights under the law, as well as interference with their rights.  Any negative change to an employee’s status or adverse employment action during leave or within six months after creates a presumption of retaliation, which the employer may rebut with clear and convincing evidence.
•  In addition, the MPFLA provides a much lower threshold of work time for employees to qualify for MPFLA leave.  Under the MPFLA, paid leave is available to any employee who, while working in Massachusetts, has earned enough money in the prior year to meet the financial test to obtain unemployment insurance.  Under the FMLA, employees have to have worked at least one year and 1250 hours over the previous 12 months to qualify for FMLA leave.

Recommended Steps for Compliance

• Beginning on July 1, 2019, employers are required to start making financial contributions to support the paid leave portion of the MPFLA.  The initial contribution rate is set at .63% of each employee’s wage.  An employer may be exempt if they offer a plan which is greater than or equal to those provided under the MPFLA.  
• Employers may apply for an exemption online and will be notified immediately of approval or denial.  Employers with qualifying private plans are not required to remit payments to fund the state plan.   
• However, even if an employer is exempt by way of a private plan, employees are still entitled to the protections under the MPFLA, including the rights to appeal their application if denied, job protections during leave and protections against retaliation.  
• Given the sweeping changes contemplated by the MPFLA, Massachusetts employers should review their policies now to ensure compliance.