In 2021, Massachusetts will become the sixth state to offer employees paid family and medical leave, and its benefits will be the most generous by far. Benefits under the new Paid Family and Medical Leave (PFML) law will take effect beginning in January 2021. Most employees will be entitled to up to 12 weeks of paid leave to care for a family member who has a serious health condition or to bond with a new child. Eligible employees may also be able to receive up to 20 weeks of paid leave to deal with their own serious medical condition. Leave benefits are also available for employees who are affected by a qualifying exigency arising out of a family member’s active duty or impending call to active duty in the Armed Forces. Here are 10 things you need to know about the new PFML law and how it pertains to employee rights.
- New Parents can Qualify for Partial Wage Replacement
Adding a child to your family? You may be eligible to receive up to 12 weeks of partial wage replacement per year under the PFML.
- PFML Will Apply to all Parents, Including Biological, Adoptive, and Foster Parents
In the past, certain leave policies were not gender neutral. Under the PFML, all parents who are otherwise eligible can take paid leave. It is also important to know that PFML not only applies to births, but also to adoptions and foster care placements. In other words, whether your family is welcoming a new biological child, new adoptive or foster child, you may be eligible for benefits under the PFML.
- You Do Not Have to Use PFML All at Once
Leave under the PFML does not have to be taken all at once. If the employee and the employer agree, family leave can be split, taken intermittently, or taken through employment of a reduced schedule during the first 12 months after the child’s birth, adoption, or foster care placement. Medical leave may be taken intermittently if a medical professional determines that it is medically necessary. Leave may also be taken intermittently if a qualifying exigency arising out of a family member’s active duty or impending call to active duty in the Armed Forces has occurred.
- Employees May be Able to Take PFML for Serious Health Conditions
PFML is not just for parents. You may qualify for 20 weeks of partial wage replacement for paid medical leave if you have a serious health condition that prevents you from working, or up to 12 weeks to care for a family member with a serious health condition.
- PFML Payments Will be Calculated Based on Your Average Weekly Earnings With a Maximum Amount
How much will you get paid? You may receive up to $850 per week, depending on your income. Weekly benefits will be calculated based on a percentage of your average weekly earnings for a maximum weekly benefit of $850 (or 64% of the state average weekly wage). This is how the calculation works: the portion of your average weekly wage that is equal or less than 50% of the state average weekly wage will be replaced at a rate of 80%, and the portion that is greater than 50% of the state average weekly wage replaced at a rate of 50%. The Massachusetts Department of Family and Medical Leave has a calculator to help you estimate the amount of pay you will receive when on leave.
To be eligible, you must have approximately 15 weeks of earnings or more, and you must have earned at least $4,700 in the 12-month period prior to when you take PFML. Even if you are currently unemployed, you may still be eligible for PFML if you have about 15 weeks or more of earnings in the 12-month period before you apply for PFML benefits.
- PFML Has a Maximum Benefit Period
There is a maximum benefit period of 26 weeks. PFML coverage must run concurrent with leave taken under the federal; Family and Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) and Massachusetts Parental Leave Act (M.G.L. c. 149, § 105D).
- Employees Who Take PFML Have Legal Protections and the Right to Return to Work
You have legal protections when you take PFML time. First, and most importantly, your job is protected. This means that you must be restored to your previous or equal position prior to taking PFML time. Under Massachusetts law, your employer is prohibited from engaging in any form of retaliation or discrimination against you for requesting or taking leave.
- Employees Who Face Discrimination or Retaliation for Taking PFML May be Eligible for Legal Remedies
You have legal remedies if your employer does not follow PFML law, of if you are treated differently by your employer for taking leave under the PFML. If your job is not protected (i.e., you are fired, or demoted), or if you face retaliation or discrimination (i.e., your best accounts are taken away, or your employer otherwise treats you differently than your colleagues), you can bring a lawsuit within three years of the violation.
Perhaps most importantly, the law states that any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee which occurs any time during a leave taken by an employee, or during the 6 month period following an employee’s leave shall be presumed to be retaliation.
The court may take one or more of the following actions:
- Issue temporary restraining orders (TROs) or preliminary or permanent injunctions to stop the violations of law;
- Reinstate you to the same or equivalent position prior to when you requested or took PFML time;
- Reinstate your fringe benefits and seniority rights;
- Award you (the employee) three-times lost wages and lost benefits; and
- Order payment of reasonable costs and attorneys’ fees.
- PFML Will be Funded by Payroll Contributions by the Employee and Employer
Contributions start Oct. 1, 2019. Benefits for medical and parental leave start Jan 1, 2021. Benefits for family medical start July 1, 2021. If you are self-employed, you are not required to comply with PFML law. However, if you are self-employed, you can elect to pay contributions in order to be eligible for coverage under the PFML law.
Your employer can deduct up to 40% of the total medical leave contribution required for an individual, and up to 100% of the total family leave contribution required for an individual.
- Most Massachusetts Employees Will Be Covered By PFML Law
Most Massachusetts employees will be covered by the PFML law. You are likely covered if one of the following scenarios is true:
- You are paid wages by a Massachusetts employer;
- You reside in Massachusetts and are paid for contract services by a Massachusetts entity with an independent contractor workforce that makes up more than 50% of the employer’s workforce; or
- You are self-employed and opt-in, paying contributions in order to have PFML coverage.
Contact a Massachusetts Employment Law Attorney with Questions
Do you have questions about taking leave under the federal Family and Medical Leave Act (FMLA) or concerns about whether the new PFML will apply to you? A dedicated Massachusetts employee rights attorney can speak with you about your situation. The advocates at Rodman Employment Law have years of experience serving employees in and around the Boston area, and we can begin working on your case today. Contact Rodman Employment Law for more information.