By Erica E. Flores and Andrew J. Adams

Around mid-April, when we had just started to get used to working from home and were being inundated with questions about the Families First Coronavirus Relief Act and the DOL’s mountain of related guidance, one of our colleagues randomly asked the rest of us if the Department of Family and Medical Leave (the “Department”) might push back the planned go-live date for paid family and medical leave benefits in Massachusetts.  At the time, we thought it was a legitimate possibility—after all, businesses were struggling to survive a global pandemic and the worst economic downturn since the Great Depression.  How could the state possibly roll out this burdensome new law in just a few months?

Well, it’s a good thing that we are attorneys, and not psychics, because it seems like delay is the last thing on the Department’s mind.  Quite to the contrary, the Department spent its quarantine hard at work, and recently dropped a fresh bomb on employers—a set of proposed amendments to the regulations we all thought had been finalized last summer.  While many of the proposed changes are minor alterations—for example, claims are now referred to as applications for benefits—there are some substantial proposed changes as well.  Below is a summary of what we think are the most noteworthy changes.

Clarifications?

The Department has proposed modifications that may leave employers scratching their heads.  For example, “Job Protected Leave”  will now be classified as the period of time immediately following the first date on which an employee commences taking any type of leave associated with a qualifying reason, regardless of whether the employee has filed an application for benefits with the Department (or ever files an application for benefits) or whether the leave is paid or unpaid.  Similarly, the presumption of retaliation will apply to any Job Protected Leave—which, again, includes leave taken for a qualifying reason regardless of whether an application for benefits is ever filed—and if an employee does file a claim, the Department will now request from the employer “information supporting whether the employee’s or covered contract worker’s request for medical or family leave has been approved, denied or is pending upon the receipt of additional information.”  Finally, an application for benefits will be considered a “Complete Application” if it contains all information required from the employer and the employee.  However, an application will be deemed complete either when the employer responds or 10 days after the Department requests the information from the employer, whichever is shorter.  This suggests that the application can be deemed complete even if the employer never responds or does not provide all of the information that was requested. 

Taken together, these proposed amendments seem designed to separate the decision to grant or deny leave from the decision to grant or deny an application for financial benefits, with the former now apparently being left up to the employer based on its determination as to whether the requested leave is for a qualifying reason.  Which begs the question: what information does the employee have to provide to the employer to support a request for PFML leave?

The proposed regulations require the Department to share any information relevant to an application for benefits with the employer within five (5) days after the application is filed, including the health care provider’s certification supporting the need for leave, and to “facilitate the disclosure and exchange of relevant information or records regarding the application for benefits.”  But what if the employee never files an application with the Department, or does not do so until long after he or she has taken the leave?  What information can the employer request from the employee in that situation?  Can the employer deny the leave or count the leave as an unexcused absence until that information has been provided?  So far, those questions remain unanswered.

Private Plans

The proposed amendments make significant changes to the private plan exemption and application process.  First, they make clear that employers cannot get an exemption for only a portion of their covered workforce.  Second, a private plan must include an appeals process by which an employee can appeal a claim denial to the private plan administrator.  Third, private plans must provide employees notice of their rights under the plan, the statute and the regulations with every decision to grant or deny benefits, and they will have to provide claim-related documentation to the Department upon request.  With respect to the application process, the Department clarified that employers do not have a right to appeal the denial of a private plan exemption; the Department may review a denial if it chooses to, but it has no obligation to do so, and its decision is final.  The amendments propose to have the Division of Insurance be responsible for approving private plans offered by insurance companies and, finally, would make clear that employers who fail to properly maintain their private plans or have their exemptions withdrawn will face penalties for failure to pay taxes under M.G.L. c. 62C plus interest in addition to the penalty that will be imposed by the Department.

Intermittent Leave

The Department has proposed several changes to the way it handles intermittent leave, including the elimination of the employer’s right to decide the minimum amount of time an employee must take when they use intermittent leave.  The existing regulations give employers the right to establish a minimum increment of up to four (4) hours.  Under the proposed amendment, employees would be able to take intermittent leave in increments of just 15 minutes in all cases.  This would mean that it would take a lot longer for an employee to exhaust PFML time using intermittent leave, something that may disproportionately burden employers that have mandatory staffing requirements.  The proposed regulations would also require employers to submit to the Department on a monthly basis the amount of wages or other qualified earnings paid to an employee taking intermittent leave.

Presumption of Retaliation

There is a bright side for employers, however, and it has to do with the fearsome presumption of retaliation.

As you may recall, the PFML statute includes language providing that any negative action an employer takes against an employee within six (6) months after the employee took leave under the new law will be presumed to be retaliation, and that presumption may be rebutted only by “clear and convincing” evidence that the employer had an independent justification for the action and would have taken the same action regardless of the employee’s leave or other activity protected by the statute.

The Department’s proposed amendments make this law just a little less harsh.  First, if an employee’s use of intermittent leave is inconsistent with the Department’s approval, an employer’s request for additional information from the employee related to the employee’s use of the leave will not be considered retaliatory.  Similarly, if an employer has a bona fide belief that an employee has committed fraud in connection with a PFML application, the employer  may notify the Department without fear that the report will give rise to a claim of retaliation.  Finally, the Department clarified that:

• the six (6) month period during which the presumption of retaliation applies will start on the first day of the leave;
• a negative change does not include “trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work”; and
• an employer’s application of a pre-existing employment rule or policy shall be deemed to be clear and convincing evidence sufficient to rebut the presumption of retaliation.

The Bottom Line

Some of the changes proposed by the Department are beneficial for employers, especially the new guidance about how the presumption of retaliation will be applied.  But other changes seem to significantly expand the employer’s role in the leave approval process without carefully defining what that expanded role really demands.  The Department has scheduled an online public hearing to allow businesses and other interested parties to weigh in on the proposed amendments.  It will take place this Thursday, June 11, 2020, from 10 a.m. to 1 p.m.  You can register to attend and submit written comments here.  We’re hoping the Department will carefully consider feedback from the business community and revise the proposal to better clarify what employers must do and what information they are entitled to request from their employees in the process.

We will publish another update here once the amended regulations are finalized.  In the meantime, as always, our attorneys are available if you have any questions about how these proposed changes may affect your business.