Statutory Update – COVID-19 Leave Legislation; DC PFL, MA PFML, Chicago Paid Sick Leave

May 29, 2020

State and Local Legislation

Long Beach, CA COVID-19 Paid Supplemental Sick Leave

On May 19 Long Beach, CA’s City Council approved the “COVID-19 Paid Supplemental Sick Leave” ordinance (ORD-20-0017). The ordinance is similar to those recently enacted in Los Angeles City, Los Angeles County, San Francisco, San Jose (reported in our April 17 and May 1 releases) and Oakland (below), and will be added as chapter 8.110 to the Long Beach Municipal Code.

Effective May 19 with continuation following review by the City Council every 90 days.

Applies to:

• • Employers as defined under CLC §18 with 500 or more employees nationally who are not required to provide paid sick leave benefits under FFCRA’s Emergency Paid Sick Leave Act (EPSL)
  • All employees who perform work within the geographic boundaries of the City of Long Beach. Employee status in the construction industry is determined in accordance with CLC §245.5(a)(2); all other employees are determined in accordance with CLC §2750.3.
    • Excludes: Employees who can work remotely & Government employees working within the course and scope of their employment.
    • Employers may exclude employees who are healthcare providers and/or emergency responders (as defined in the ordinance).
  • A collective bargaining agreement in place on the ordinance’s effective may supersede the provisions of this ordinance if it contains COVID-19 related sick leave provisions.  If it does not, the employer must comply with the ordinance unless and until the CBA is amended. With such an amendment, or when the CBA expires or is otherwise open for renegotiation, the provisions of the ordinance may be waived only if the waiver explicitly states that employees are waiving the benefits they are legally entitled to pursuant to the City of Long Beach’s COVID-19 Paid Supplemental Sick Leave (PSSL).

Leave Entitlement:

• • Full-Time: 80 hours
  • Part-Time: leave equal to the number of hours the employee works on average over a two-week period.
  • Unused PSSL expires after the ordinance is no longer effective, unless an employer extends an employee’s access to such leave. An employee is not entitled to be paid for unused PSSL under any circumstances.

Benefit: 

• • Employee’s own need for leave: 100% of the employee’s regular rate of pay to a maximum of $511 per day ($5,110 in total);
  • Care for another person: 66 2/3% of the employee’s regular rate of pay to a maximum of $200 per day ($2,000 in total).
  • A part-time employee’s daily benefit will be calculated based on the average number of hours the employee worked per day during the six months immediately preceding May 19. If an employee has been employed for fewer than six months, the employer must calculate the benefit amount based on the average hours the employer expected the employee to work per day at the time of hire.

Reasons for Use – Inability to work or telework because:

• • The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
  • The employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider;
  • The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
  • The employee is caring for a minor child because the child’s school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.

Certification: An employer may require the employee to identify the basis for requesting leave, but may not require a doctor’s note or other documentation.

Use: An employer may require the employee to follow reasonable notice procedures in order to use paid supplemental sick leave, but only when the need for leave is foreseeable.

 Interplay with other Leaves:

• • Employees may not be required to exhaust their sick leave or other accrued leave prior to use of PSSL.
  •  If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide PSSL for any employee that received the more generous paid leave.
  • An employer’s obligation to provide PSSL benefits shall be reduced for every hour the employer provided an employee with paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for any of the purposes covered by the ordinance or in response to an employee’s inability to work due to COVID-19.
  • Employers are prohibited from changing any paid time off policies on or after May 19, except to provide additional leave.

Oakland, CA COVID-19 Emergency Paid Sick Leave

On May 12 Oakland, CA passed the “COVID-19 Emergency Paid Sick Leave Ordinance”, which will be added as Chapter 5.94 of the Oakland Municipal Code.

Effective May 12 through December 31, 2020, unless extended.

Applies to:

• • All private employers, including employers subject to the federal Families First Coronavirus Response Act (FFCRA).
    • Includes temporary employment agencies, staffing agencies and similar entities.
    • Excludes: Employers that employed fewer than 50 employees between February 3, 2020 through March 4, 2020, except for unregistered janitorial employers and franchisees associated with franchisors or franchise networks employing more than 500 employees in total & Government entities.
    • Allows employers of healthcare providers and/or emergency responders (as defined under FFCRA, CFR §826.30(c)) to elect exemption if they keep information describing employee classifications exempted and not exempted, as well as information related to location(s) of the exempted employees and from which provisions of the law the employees are exempted, for a period of 3 years.
  • All employees as defined under California Labor Code §2750.3 and IWC wage orders who have worked for the employer for at least two hours after February 3, 2020 within the geographic boundaries of the city.
    • Includes recipients of public benefits who as a condition of receiving public assistance have performed at least two hours of work within the geographic boundaries of the city for an employer after February 3, 2020.
    • Excludes employees who can work remotely.
  • Collective bargaining agreements may waive a provision of the ordinance if that waiver is set forth in clear and unambiguous terms and the CBA meets requirements under CLC §245.5(a).

Leave Entitlement:

• • Employees classified as Full-Time or who worked at least 40 hours per week in Oakland from February 3, 2020, through March 4, 2020, or at any point thereafter, are entitled to 80 hours of Emergency Paid Sick Leave (EPSL).
  • Employees who worked fewer than 40 hours per week from February 3, 2020, through March 4, 2020, and continue to do so are entitled to an amount of EPSL equal to the average number of hours worked in Oakland over 14 days during the period of February 3, 2020 through March 4, 2020. The 14 days must be the 14 days with the highest number of hours worked within the city during that period.
  • The above amounts are also required for employees whose employment began after March 4, 2020.

Benefit: The greater of the employee’s regular rate of pay or the city’s minimum wage, with a maximum benefit of $511 per day ($5,110 in total).

• • Time used must be paid no later than the next regular payday or 14 days after leave is taken.

Reasons for Use – Inability to work or telework because the employee:

• •  Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • Is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Is caring for their son or daughter if the child’s school or place of care has been closed, or child care is unavailable, due to COVID-19 precautions;
  • Is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
  • Needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19. “Family member” is as defined in CLC §245.5(c) and in the ordinance, and also includes an individual to whom the employee is responsible for providing or arranging care and any individual whose close association is the equivalent of a family member.
  • Or, the employee:

1. 1. 1. Is at least 65 years old;
      2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
      3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
      4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Use:

• • Employees may elect to use EPSL in one-hour increments. Employers cannot require employees to use leave in more than one-hour increments.
  • If the need for leave foreseeable the employee must provide notice to the employer as soon as practicable.

 Certification:

• • An employer may not require a doctor’s note or other documentation for the use of EPSL, except for additional conditions that require certification under #8(d) above. The certification need not disclose the employee’s condition, only that he or she is at a heightened risk for serious illness or death if exposed to COVID-19.
  • Healthcare provider certification may be obtained via telemedicine.
  • An employer may only take reasonable measures to verify or document that an employee’s use of EPSL is lawful, and shall not require an employee to incur expenses in excess of five dollars in order to demonstrate his or her eligibility for such paid leave.
  • An employer may not prevent an employee’s access to or use of EPSL in order to obtain documentation to satisfy the reimbursement or tax credit reporting requirements under FFCRA.

Interplay with other Leaves: 

• •  Employees may elect to use EPSL before using any other leave the employer provides voluntarily or per the pre-existing Oakland Paid Sick Leave law. Employers cannot require employees to use other leave before they use COVID-19 EPSL.
  • Time provided under FFCRA’s Emergency Paid Sick Leave Act may be credited against Oakland EPSL obligations.
  • The obligation to provide EPSL does not apply to any employer that, after February 3, 2020:
    • Provides employees with the ability to accrue at least 160 hours of paid personal leave, if:
    • each employee has immediate access to at least 80 hours of leave after May 12 available for uses the EPSL ordinance requires; and
    • any employee who used paid personal leave before May 12 and has fallen below 80 hours of accrued paid leave as of May 12, be provided additional leave to bring his or her paid personal leave balance up to 80 hours, to be used for purposes the EPSL ordinance requires.

OR

• • • Provides its employees immediate access to paid personal leave in amounts at least equivalent to what, and for the same purposes, the EPSL ordinance requires. For this to apply, the paid personal leave must have been in addition to any paid leave the employer was otherwise required to provide pursuant to a collective bargaining agreement, employment contract, or public policy.

If an employer lays off an employee, the employer must compensate the employee for all sick leave accrued under the existing Oakland Paid Sick Leave law immediately upon separation.

Notification to Employees: Within 3 days of its availability from the city, employers must provide a notice outlining rights under the EPSL ordinance in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in any language spoken by at least 10% of employees. The model notice has not yet been published.

Chicago, IL Anti-Retaliation Ordinance

On May 20 Chicago’s City Council passed Substitute Ordinance 2020-2343, which prohibits employers from taking adverse action against employees complying with instruction to isolate or self-quarantine due to COVID-10 by order of the state government or a public health entity, or under instruction of a healthcare provider, either to care for themselves or for family members. This protection is effective immediately and extends until the Commissioner of Public Health determines that the ordinance can be repealed.

The Ordinance also makes a change to the city’s Paid Sick Leave Ordinance, which is discussed below.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

District of Columbia Paid Family Leave (DC PFL) Begins July 1!

Beginning July 1, 2020, eligible employees in the District of Columbia will be able to collect paid family and medical leave benefits period for qualifying reasons:

• • 2 weeks to care for an employee’s own serious health condition;
  • 6 weeks to care for a family member with a serious health condition;
  • 8 weeks to bond with a new child during the first year.

The maximum duration of PFL leave in a 52-week period is 8 weeks of leave, regardless of the number of qualifying leave events.

DC PFL will be administered by the District’s Office of Paid Family Leave (OPFL) and funded via employer contributions.

Resources for may be found on the Department of Employment Services (DOES) and Paid Family Leave websites, including:

• •  Employer Toolkit;
  • Employee Notice due to all employees by February 1, 2020, and annually thereafter, new employees at hire, and any employee upon notice to the employer of a need for leave;
  • COVID-19 FAQ;
  • FAQ for employers and employees;
  • March 13 overview webinar, plus an employer webinar series.

Final regulations providing guidance on various aspects of DC PFL benefits were released earlier this year. Items of note include:

• • Eligible employees may have more than one PFL claim open at a time for separate qualifying events (even if they are the same type of event), but may not collect payment for more than one claim on any given day. (§3501.14)
  •  A 7-day waiting period, beginning the first day of the qualifying event, must be satisfied before PFL benefits will be paid. (§3504)
    • The waiting period does not count against an employee’s total PFL entitlement.
    • Only one waiting period applies per benefit year, regardless the number of PFL claims the employee files during that year.
  • Leave may be taken intermittently, in increments of no shorter than 1 day.
    • Instruction around intermittent claims and partial weeks during a continuous leave claim appears in §3506.4 through §3506.15.
  • PFL benefits will be paid on a bi-weekly schedule via direct deposit or debit card (per the 3/13 webinar), with a week running Sunday to Saturday. The actual day of the week for payment is to be determined. (§3507)
  • DC PFL leave runs concurrently with FMLA and DC FMLA; job protection is only as provided under these laws. (§3513)
  • Interplay with company benefits:
    • Employers will be notified when an employee files a claim and upon determination. Upon an approval for benefits, the notification the employer receives will not provide the employee’s benefit amount unless the employee has instructed DOES to include this information.  However, an employer may require an employee to disclose the benefit amount in order for benefits under an employer’s policy to be paid. (§3502.8)
    • Employers may determine how their own leave policies, including Short-Term Disability, sick time, vacation time, comparable leave) work in conjunction with DC PFL. (§3513.5)

The Program Benefits regulations will ultimately appear as Chapter 35 of DCMR Tit. 7.  Final regulations around Employer Contributions have been added as Chapter 34.

Chicago, IL Paid Sick Leave Amendments

In addition to the worker protection provided by Substitute Ordinance 2020-2343 noted above, the ordinance amends the city’s Paid Sick Leave Ordinance (PSLO) effective July 1, 2020.  The change corrects a “scrivener’s error” made in amendments enacted last December that removed several classifications of employees from eligibility.  The corrected definition of eligibility is below, with the re-added groups in italics:

“Covered Employee” means an Employee who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographic boundaries of the City. For purposes of this definition, time spent traveling in the City that is compensated time, including, but not limited to, deliveries, sales calls, and travel related to other business activity taking place within the City, shall constitute work while physically present within the geographic boundaries of the City; however, time spent traveling in the City that is uncompensated commuting time shall not constitute work while physically present within the geographic boundaries of the City.

“Covered Employee” does not include any individual permitted to work:

(a) as a camp counselor employed at a day camp if the camp counselor is paid a stipend on a onetime or periodic basis and, if the camp counselor is a minor, the minor’s parent, guardian or other custodian has consented in writing to the terms of payment before the commencement of such employment;

(b) while subject to subsection 4(a)(2) of the IL Minimum Wage Law, with the exception of the categories of Employees described in subsections 4(a)(2)(A) and 4(a)(2)(B) of the Minimum Wage Law, who shall be entitled to the Wages that their Employer shall otherwise pay under Section 1-24-020(b) and 1-24-030 above, whichever applies, as well as the overtime compensation described in Section 1-24-040; and

(c) for any governmental entity other than the City and its Sister Agencies.

Except as provided in (d)(i) and (d)(ii), “Covered Employee” does not include any individual permitted to work for an Employer who has fewer than four Employees.

(d)(i) All Domestic Workers, including Domestic Workers employed by Employers with fewer than four Employees, shall be Covered Employees

    (ii) Employees who work in the following categories shall be Covered Employees:

1. 1. 1. 1. As an outside salesman;
         2. As a member of a religious corporation or organization;
         3. At, and employed by, an accredited Illinois college or university at which the individual is a student who is covered under the Fair Labor Standards Act, as amended;
         4. For a motor carrier and with respect to whom the U.S. Secretary of Transportation has the power to establish qualifications and maximum hours of service under the provisions of Title 49 U.S.C. or the State of Illinois under Section 18b-105 (Title 92 of the Illinois Administrative Code, Part 395 – Hours of Service of Drivers) of the Illinois Vehicle Code.

On May 12 the city posted updated rules on the Paid Sick Leave webpage, which outline some employee notification requirements not previously defined, effective July 1, 2020:

• • Notice to Employees must be:
    • Posted for all employees via the employer’s usual practice for required notices, whether paper or electronic.  If a paper notice is posted, it must be printed 11”x17”.
    • Provided along with the employee’s first paycheck, via 8.5”x11” insert or, in the event employees are paid by direct deposit (i.e., do not receive a paycheck), electronic posting.
    • Provided to all employees annually with the first paycheck on or after each July 1.
    • Published in English and any other language that applies (for which a translated model notice is available).

Massachusetts Paid Family and Medical Leave (MA PFML)

Massachusetts’ Department of Family and Medical Leave (DFML) has released proposed amendments to MA PFML regulations issued in June of last year (458 CMR 2.00). 

Material changes featured in the May 14 proposal are listed below. Note that many of the rules apply to state plan administration and may or may not apply in the same manner under a private plan.

Newly defined terms (§2.02):

• • Accrued Paid Leave
  • Active Duty
  • Application for Benefits
  • Complete Application
  • Former Member of the Armed Services
  • Good Cause
  • Job Protected Leave
  • Municipality
  • Private Plan Administrator

Definition changes (new text in italics):

• • Base Period: The last four completed calendar quarters immediately preceding the date an application for benefits is filed with the Department for a qualified period of paid family or medical leave. A completed calendar quarter is one for which an employment and wage detail report has been or should have been filed, pursuant to 458 CMR 2.04(1) and (2).
  • Continuing Treatment by a Health Care Provider, (g): Cosmetic treatments or substance abuse disorders are not serious health conditions, unless inpatient hospital care is required or unless complications develop.
  • Covered Contract Worker: A self-employed individual:

1. 1. 1. for whom an employer or covered business entity is required to report payment for services on IRS Form 1099-MISC;
      2. for whom an employer or covered business entity is required to remit contributions to the Family and Employment Security Trust Fund pursuant to the requirements of M.G.L. c. 175M, §6;
      3. who performs services as an individual entity in Massachusetts;
      4. who resides in Massachusetts; and
      5. who is not classified as an independent contractor pursuant to M.G.L. c.151A, §2.

Also, the proposal adds to §2.03, Covered Business Entities and Covered Contract Workers:  Notwithstanding the requirements set forth in 458 CMR 2.03(1)-(3), self-employed individuals or covered contract workers properly classified in accordance with M.G.L. c.151A, §2 are not considered part of an employer’s workforce.

Intermittent leave:

• •  Current: An employer may designated a minimum increment for use, not to exceed four consecutive hours. Proposed: Leave may be taken in 15 minute intervals.
  • The employee must verify with DFML the hours of leave taken each week in order to receive benefit payments. (§2.10)
  • An employer with an employee who has been approved for intermittent leave must provide DFML the amount of wages or qualified earnings paid to the employee on a monthly basis or at other intervals deemed necessary by DFML. DFML may seek a refund from the covered individual or offset any future benefit payments where DFML has determined that the employee has received wages or qualifying payments from both the employer and from the Trust Fund for the same period. (§2.13)
  •  In the event that an employee’s work schedule varies from week to week, the maximum weekly benefit amount will be calculated based on the average of number of hours worked from the two highest quarters of the 12 months preceding the employee’s application for MA PFML benefits. An employee will not be eligible for benefits in excess of the number of hours so determined by DFML. For purposes of intermittent leave, benefits may be prorated on an hourly basis utilizing the average number of hours worked during the 12 months preceding the employee’s application for MA PFML benefits.
  • The benefit year for an employee who received benefits for an intermittent leave will commence, following an approval by DFML for continued benefits, on the Sunday immediately preceding the first absence following the exhaustion of the prior benefit year.

Opt-in instructions for employers not otherwise required to comply with MA PFML (§2.06)

Partial Exemptions (§2.07(1)(a)-(b)): 

• • An employer may apply for exemption via private plan for medical leave coverage, family leave coverage, or both. Contributions toward the state program will be required for the portion of coverage (medical leave or family leave) not included in the private plan.
  • An employer may not apply for an exemption for only a portion of its covered workforce. All employees and covered contract workers and former employees under [MA PFML] must be included in the employer’s private plan in order to be approved for an exemption.

In addition to equity in benefits and cost to the state program, private plans must also follow requirements around appeals, notice and basis for benefit calculation. (§2.07(2)(c)-(e))

 Covered individuals have the right to appeal a claim denial under a private plan with DFML. Claim documentation must be provided by the employer/administrator to DFML within 5 business days of a request in connection with an appeal. (§2.07(6))

Non-renewal or termination of a private plan (§2.07(8))

Application for benefits (§2.08):

• •  An individual’s application for benefits may be filed with DFML no more than 60 days before the anticipated start date of leave.
  • Notice must be provided to the employer no less than 30 calendar days prior to leave, or as soon as practicable if beyond the employee’s control.
  • Notice of the need for leave must be made to the employer prior to application to DFML.
  • DFML will notify the employer not more than five business days after an application for PFML benefits is filed. Notification will include the employee’s identifying information, details on the type of leave and applicable dates, and certification provided.
  • An application for benefits will not be processed unless the employee consents to DFML sharing information regarding the application with the employer and healthcare provider.
  • An employer must respond within 10 business days to a request from DFML for relevant claim information such as an employee’s past wages, job description, work schedule and other leave available and taken (increase from 5 days).
  • DFML may allow an employer or its designee to submit an application for benefits on behalf of a covered individual. In order to do so, employers, covered business entities, or leave administrators must be approved by the Department and agree to adhere to all of the requirements prescribed in [regulations §2.08].

Leave entitlement: In the case of multiple births, no more than 12 weeks of leave benefits total are available in a benefit year for this purpose. (§2.08(5)(c))

DFML process for benefit determinations (§2.09), which includes:

• • Where DFML finds that a covered individual has failed to provide notice of a relevant change in circumstances which would have reduced the amount of benefits paid, the employee will be responsible for reimbursing DFML the amount overpaid within 30 calendar days of the DFML’s request.

Benefit extensions (§2.10):

• • A covered individual must apply for and be eligible for benefits in any subsequent benefit year.
  • An employer may seek recertification of the employee’s serious health condition following the expiration of the initial period of incapacity cited in the original healthcare certification, or where an intermittent leave has extended for more than six months from the approval by DFML, whichever occurs first.

Return to work (§2.11): An employer may request fitness-for-duty certification if the employee is provided with a list of the essential functions of his or her job within 10 business days of the notice to the employer of the approval of leave by DFML, and must indicate that the certification must address the employee’s ability to perform those essential functions (increase from 5 days).

Weekly benefit amount (§2.12):

• • The weekly benefit amount for family or medical leave is calculated on the individual’s average weekly wage at the time of the filing of a request for leave, which is determined by the individual’s earnings in the base period as reported to the Massachusetts Department of Revenue. The weekly benefit amount will not change during the term of the approved leave period subject to a prorated or reduced benefit amount.
  • Added to the list of amounts deducted from benefits are benefits received from a private plan and wages received from another employer or through self-employment. (§2.12(6))
  • The weekly benefit amount and/or leave allotment will be reduced by any paid or unpaid leave, wages, or wage replacement that an employee on family or medical leave receives from any source for the same qualifying reason in the 12-month period prior to filing an application for benefits. This excludes leave taken prior to January 1, 2021.
  • The weekly benefit amount may be reduced where the covered individual has an outstanding tax obligation or has an obligation for child support.
  • The 7 calendar day waiting period may be waived for family leave that immediately follows pregnancy or recovery from childbirth if supported by documentation from a healthcare provider.
  • Substitution of Employer-Provided Paid Leave (§2.12(8)):
    • Employees who are approved for leave benefits by DFML may choose to use accrued paid leave provided by their employer rather than receive a paid benefit under MA PFML. The accrued paid leave provided by an employer will run concurrently with available MA PFML leave, however MA PFML benefits will not be paid for this period of time.
    • Employers are required to inform employees who choose to use accrued leave paid by the employer that the use of these employer-provided leave accruals will run concurrently with the leave period provided under MA PFML.
  • Employer Reimbursement (§2.12(9)):
    • An employer or covered business entity that makes payments to an employee during a period of family or medical leave equal to or greater than the amount required under [MA PFML] will be reimbursed out of any benefits due to the employee or to become due from the Trust Fund by DFML.
    • To qualify for reimbursement, a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer, must be a policy or program that is granted to a covered individual for a qualifying reason under MA PFML, that is separate from and in addition to any sick leave, annual leave, vacation, personal leave, or accrued paid time off that is made available to the employee. Employers will not be eligible for reimbursement from DFML for payments to an employee where the employee has elected to utilize accrued paid leave whether it is in lieu of applying for benefits to the Department or supplementary to a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
    • A voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under MA PFML may be reimbursable under M.G.L. c. 175M, §3(c). In order to be eligible for any reimbursement, employers will be required to produce evidence that payments to an employee for a qualifying reason were consistent with the requirements set forth in [these regulations and MA PFML law].
    • In no event shall DFML reimburse an employer or covered business where the employee has received a benefit from the Trust Fund for the same period of time.

DFML has posted information regarding a public hearing addressing the proposed changes to be held on June 11; interested parties may register to participate in the hearing and/or submit comments via the Department’s designated webpage.

The Department of Insurance has responded to the release of the proposed changes by stating that the June 3 due date for carriers’ private plan product filings stands, however carriers may delay the submission of policy forms for up to 30 days following finalization of the regulations. In order to take advantage of this, a carrier must file a “placeholder filing” which includes (1) payment of filing fees, and (2) certification that the carrier will file all forms consistent with Filing Guidance Notice 2020-A no later than 30 days from publication of the final regulations. (See our April 8 release for more details).

Separately, DFML recently communicated that as of January 1, 2020, the IRS requires the use of Form 1099-NEC to report nonemployee compensation.  This income was previously reported in Box 7 of the 1099-MISC form and could be subject to contribution withholding with the Massachusetts Department of Family and Medical Leave. Any employer employing individuals that now report wages via a 1099-NEC will not be required to remit contributions on behalf of those individuals.  Employers that employ individuals that still receive wages via a 1099-MISC may still be required to remit contributions on their behalf (refer to Exemption Requests, Registration, Contributions, and Payments).

 

Please contact your MMA ADL Account Team members for specific questions about these or other updates.

 

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