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Chamber comments on updated Paid Family and Medical Leave regulations

June 10, 2020

The Chamber provided comments and questions on the updated Paid Family and Medical Leave Regulations on behalf of the 1,300 employers in our membership. Since the law was adopted, the Chamber has worked with dozens of employers representing hundreds of thousands of workers in Massachusetts, ranging in size from fewer than 25 employees to more than 10,000.  The most recent updates to the regulations make several provisions clearer, however, many the concerns stated in prior comment letters remain.

Section 2.02: Definitions

Accrued Paid Leave

  • The definition of ‘accrued paid leave’ will provide clarity for employers as they implement the law.

Good Cause

  • Defining ‘good cause’ is a helpful step, but the definition needs to be refined. What constitutes a suitable demonstration that failure to comply with a requirement was out of the party’s control?

Intermittent Leave

  • The change in the definition of intermittent leave will add to the administrative complexity of the already complex paid family and medical leave programs. The updated regulation stipulates i that intermittent leave shall be taken in increments of 15-minute intervals and removes prior language that would have allowed employers to designate a minimum time period of not more than four hours. The administrative burden to provide for a single 15-minute period is disproportionate.

Job Protected Leave

  • The definition of ‘job protected leave’ is clearer. 

Section 2.07: Application for Exemption due to Approved Private Plan

(1) Application (c) Application Timing and Effective Date

  • (2) The updated regulations appear to allow the Department to change the term of approval of a private plan after the plan is approved. A private company would require more than the regulated 30 days to implement any changes, appeal the change, or notify employees of this type of change to their benefits. Additionally, the Department should provide explicit situations in which it would be allowed to pursue changing the terms of an approval.

(2) Requirements for Exemption

  • (d) We recommend revising the language to read, “…provide notice to the covered individual as part of any adverse determination under the private plan…”
  • (e) We recommend revising the language to read, “Notwithstanding the requirements set forth in the Financial Eligibility Test, for purposes of determining the benefit amount, a private plan shall calculate the weekly benefit amount in accordance with 458 CMR 2.12 based on the wages or qualified earnings earned with the employer or covered business entity at the time of an application for benefits.”

(6) Retained Rights for Covered Individuals under Private Plans

  • Employers need more than five days to provide documentation to the Department in the case of an appeal of a denial of family or medical leave benefits. We recommend at least 10 days, as the Department has done for other information requests related to PFML benefits. 

Section 2.08 Application for Benefits 

  • We recommend that the rules in Section 2.08 regarding information, materials, and notice that must be provided to the Department be clarified to apply only in the absence of a private plan.  Also, it should be clarified that the state-issued form for applying for benefits is only required to be used by employers who have not adopted a private plan.  Employers with private plans should be free to use their own forms. 

Section 2.12 Weekly Benefit Amount

(6) Reductions

  • The updates made to this section will ensure that the benefit is being used appropriately and states clearly which benefits may be used concurrently and how benefit levels would be impacted.

(7) Initial Seven-day Wait Period

  • The language pertaining to the wait period and its applicability in cases of pregnancy or recovery from childbirth is unclear. We suggest making the following clarification, “…in which case the seven-day wait period to apply and receive benefits for the family leave immediately following the medical leave shall not be required.”

Section 2.13 Intermittent Leave and Reduced Leave Schedules

(2) Agreed-to Intermittent or Reduced Leave Schedules

  • The language in this section should make clear that the reporting schedule for an employer with a covered individual that has been approved for intermittent leave is consistent for all covered individuals under that employer. The process for submitting this report should be outlined. Additionally, we recommend that the Department maintain a consistent schedule for this reporting across the board and remove the language, “… or at other intervals deemed necessary in the discretion of the Department.”

Section 2.16: Job Protection, Prohibition on Retaliation

(3) Presumption

  • This section will help to ensure program integrity. New language in this section that clarifies an employer may notify the department of suspected fraud under a ‘bona fide belief’ that it has occurred without risking a presumption of retaliation is a positive addition and will allow employers to work in cooperation with the Department to limit fraud while protecting employees. 

Carolyn Ryan

Senior Vice President, Policy & Research

[email protected]
617-557-7310

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