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Compliance Corner

State Updates

Mini-COBRA Premium Assistance

April 27, 2021

On April 16, 2021, the Division of Insurance announced the premium assistance available to individuals under the American Rescue Plan Act of 2021 (ARPA). Massachusetts’ announcement reiterated that the ARPA provides premium assistance to individuals on federal COBRA and Massachusetts “mini-COBRA.” The assistance is available for April 1, 2021, through September 30, 2021, and eligible individuals should receive a notice from their employer.

The notice also mentions that Massachusetts residents will have a special enrollment period to enroll on the Massachusetts exchange (Health Connector) when their federal COBRA subsidy expires after September.

Massachusetts employers should comply with ARPA, as applicable.

Mini-COBRA Premium Assistance for Eligible Massachusetts Residents »

Updated Guidance on Telehealth Services

April 27, 2021

On April 9, 2021, Commissioner Anderson released Bulletin 2021-04, supplementing and superseding Bulletin 2020-04 (Emergency Measures to Address and Stop the Spread of COVID-19). Chapter 260 of the Acts of 2020 was passed after that, and requires coverage for telehealth services within insured health plans issued or renewed in the state.

Until the Division of Insurance promulgates rules regarding telehealth services, providers should comply with Bulletin 2020-04’s requirements. One notable exception is that Chapter 260 allows carriers to undertake utilization review, including preauthorization to determine the appropriateness of telehealth as a means of delivering healthcare services, if the determination is made in the same manner as if the services were delivered in person. However, the division expects carriers not to make changes until they provide the division with an implementation plan.

Carriers are also expected to provide clear communication materials to in-network providers to explain how to submit reimbursement claims for telehealth services. Additionally, they must reimburse providers for services delivered via telehealth at a rate that is no less than the reimbursement required under Chapter 260.

Although this guidance affects insurance carriers, employers should be aware of these mandates.

Bulletin 2021-04 »

Updated Guidance on COVID-19 Treatment

April 27, 2021

On April 2, 2021, Commissioner Anderson released Bulletin 2021-03, supplementing and superseding Bulletins 2020-10 (Credentialing and Prior Authorization during COVID-19) and Bulletin 2020-13 (Coverage for COVID-19 Treatment and Out-of-Network Emergency and Inpatient Reimbursement During the COVID-19 Health Crises).

The bulletin reminds carriers that they are expected to provide coverage and forgo any cost sharing for medically necessary outpatient COVID-19 treatment and rehabilitation services delivered by in-network providers. When the services are provided in an emergency department, there also should not be any cost sharing whether in-network or out-of-network. Additionally, all in-network providers must be reimbursed at that contractually allowed amounts.

The Division also expects carriers to suspend any prior authorization requirements and to provide inpatient hospitals with up-to-date lists of in-network rehabilitation hospitals and skilled nursing facilities. The bulletin also explains how carriers are expected to reimburse out-of-network acute care hospitals and the out-of-network providers providing emergency department and inpatient services.

Although this guidance affects insurance carriers, employers should familiarize themselves with this guidance.

Bulletin 2021-03 »

COVID-19 Exchange Special Enrollment Period

February 17, 2021

On February 3, 2021, Commissioner Anderson released Bulletin 2021-02, providing a special enrollment period (SEP) on the state exchange as a part of the state’s ongoing response to the COVID-19 pandemic. The SEP is in effect from February 3, 2021, through May 23, 2021. As background, individuals may usually only elect coverage through the state exchange during open enrollment or special enrollment periods.

Although this change affects the individual market, employers should keep this in mind as it would likely create a qualifying event that would allow for an employee to potentially drop employer coverage (for themselves or their dependents) to go on the Massachusetts exchange.

Bulletin 2021-02 »

Additional Guidance Addressing COVID-19 Vaccines

February 02, 2021

On January 21, 2021, Commissioner Anderson issued Bulletin 2021-01, providing updated guidance reminding carriers that they should facilitate members’ access to COVID-19. This bulletin adds additional carrier expectations to those that were expressed in Bulletin 2020-32 (which was discussed in the January 5, 2021, edition of Compliance Corner).

This bulletin clarifies that the Division of Insurance expects carriers to:

  • Forgo any cost sharing for vaccinations at providers’ offices (including from out-of-network providers
  • Reimburse providers (whether in-network or out-of-network) for the cost of administering COVID-19 vaccines at a level that is higher than the MassHealth rate of reimbursement
  • Reimburse providers for the vaccine separately if it is administered and billed separately from the full office or emergency visit
  • Pay all subrogation claims for any vaccines administered at pop-up locations, mass vaccination sites, or public clinics hosted by state or municipal health departments

The division also encourages carriers that are acting as administrators to self-insured plans to follow this guidance as well.

Although this bulletin is directed towards insurance carriers, employers based in Massachusetts should familiarize themselves with this guidance as they continue to contend with participants being affected by COVID-19.

Bulletin 2021-01 »

Continuation of Flexibility in the Issuance and Administration of Insurance

January 05, 2021

On December 29, 2020, Commissioner Anderson issued Bulletin 2020-30, extending the protections offered in Bulletin 2020-05. Bulletin 2020-30 reiterates that the Division of Insurance expects insurance carriers to continue to take steps to help address concerns about maintaining coverage and preserving the insurance market during the COVID-19 crisis. The division requests that carriers communicate and allow flexibility as it pertains to payment of premiums and continuation of coverage. Specifically, carriers should explain grace periods that are available, work with employers and individuals experiencing financial hardships, and explore ways to relax due dates for premiums.

In addition to the requests made in Bulletin 2020-05, the division now also expects carriers to maintain customer support services to provide consumer information about their insurance options in a way that will allow them to prevent a loss of coverage.

Although this guidance is directed towards insurance carriers, employers based in Massachusetts should familiarize themselves with this guidance as they continue to contend with participants being affected by COVID-19.

Bulletin 2020-30 »

Continuation of Flexibility in Efforts to Treat and Restrict the Spread of COVID-19

January 05, 2021

On December 29, 2020, Commissioner Anderson issued Bulleting 2020-31, extending the protections offered in several bulletins addressing the COVID-19 crisis. Specifically, this bulletin reminds insurance carriers that the state of emergency continues that they should take special care to ensure that they are still operating in a manner that is consistent with these bulletins:

  • Bulletin 2020-02 – Addressing COVID-19 (Coronavirus) Testing and Treatment
  • Bulletin 2020-04 – Emergency Measures to Address and Stop the Spread of COVID-19 (Coronavirus)
  • Bulletin 2020-06 – Administration of Prescription Drug Benefits During COVID-19 (Coronavirus) Public Health Crisis
  • Bulletin 2020-07 – Making Consumer Information Available During the COVID-19 Crisis
  • Bulletin 2020-10 – Credentialing and Prior Authorization During COVID-19 Health Crisis
  • Bulletin 2020-13 – Coverage for COVID-19 Treatment and Out-of-Network Emergency and Inpatient Reimbursement During the COVID-19 Health Crisis
  • Bulletin 2020-15 – Relaxing Certain Health Plan Administrative Procedures During the COVID-19 Health Emergency
  • Bulletin 2020-16 – COVID-19 (Coronavirus) Testing
  • Bulletin 2020-21 – Continued Relaxation of Prior Authorization in Response to the COVID-19 Health Emergency
  • Bulletin 2020-23 – Updated Guidance for COVID-19 PCR and Antigen Testing
  • Bulletin 2020-25 – Easing Administrative Billing for PCR and Antigen Testing
  • Bulletin 2020-28 – Continued Relaxation of Certain Administrative Procedures in Response to the COVID-19 Health Emergency

The division also clarified that they now intend for carriers to ease administrative processes (as outlined in Bulletin 2020-21) through at least March 31, 2021, in order to allow hospitals to devote their resources to treatment of COVID-19 patients.

Although this guidance is directed towards insurance carriers, employers based in Massachusetts should familiarize themselves with this guidance as they continue to contend with participants being affected by COVID-19.

Bulletin 2020-31 »

Addressing COVID-19 Vaccines

January 05, 2021

On December 29, 2020, Commissioner Anderson issued Bulletin 2020-32, reminding carriers that they should facilitate members’ access to COVID-19 vaccines. The division intends for members to have access to the vaccine through insurance, and for the cost of obtaining the vaccine not to be a barrier.

Carriers are expected to communicate all vaccine options to covered persons. Additionally, carriers are expected to:

  • Provide descriptive vaccine information on plan websites
  • Maintain dedicated help lines to respond to calls about the new coronavirus and provide information on vaccine providers
  • Relax prior approval requirements for the vaccine (including for out-of-network providers)
  • Reimburse all providers for the cost of administering COVID-19 vaccines and forego any cost sharing for the individual

Although this guidance is directed towards insurance carriers, employers based in Massachusetts should familiarize themselves with this guidance as they continue to contend with participants being affected by COVID-19.

Bulletin 2020-32 »

Eligible Workers May Begin Requesting Paid Family and Medical Leave

January 05, 2021

As of January 1, 2021, workers can request benefits under the Paid Family and Medical Leave Law (PFML, as enacted in 2018). (See the July 10, 2018, and August 18, 2020, editions of Compliance Corner for discussions of the PFML and the finalized rules.)

Beginning in January, workers can begin to apply for leave to welcome a new child into their family, for their own serious health condition and for certain military considerations. In July 2021, workers will be able to apply for leave to care for an ill relative.

Employers should be aware that workers may begin to request this leave. For more information about the law, ask your advisor for a copy of our white paper on Massachusetts PFML.

Press Release on the Launch of PFML Benefit »

Information Regarding the Renewal of Fully-Insured PFML Exemptions

December 08, 2020

On October 29, 2020, the Department of Family and Medical Leave provided information concerning the renewal of employers’ paid family and medical leave (PFML) fully-insured exemptions. As background, employers that provide a private leave plan can apply for an exemption under the PFML. When employers last received this exemption, it was set to expire on December 31, 2020. They were also notified that if they did not have the private insurance in place on January 1, 2021, they would need to pay PFML contributions going back to October 1, 2019.

Employers that will file for an exemption for 2021 have from November 30, 2020, through December 31, 2020 to apply. The guidance provides links to detailed directions on filing and provides instructions on how the form must be completed. Employers that do not intend to renew their exemption will need to contact the PFML Contact Center at (617) 466-3950.

Information Regarding the Renewal of Your Fully-Insured PFML Exemption »

Extension of Relaxation of Prior Authorization Procedures for COVID-19

September 29, 2020

On September 22, 2020, Commissioner Anderson released Bulletin 2020-28, extending the guidance from Bulletin 2020-21 through December 31, 2020. As background, Bulletin 2020-21 required insurance carriers to provide flexibility because of the COVID-19 public health crisis.

As a reminder, the guidance requires carriers to:

  • Forego prior authorization reviews or concurrent reviews for any scheduled surgeries and behavioral health or non-behavioral health admissions at acute care and mental health hospitals for a period lasting through September 30.
  • Devote carrier resources to assist hospitals with discharge planning.
  • Provide hospitals additional time to respond to carrier requests for claims review information or to process internal and external appeals and document claims.
  • Delay audits of hospital payments.
  • Process all clean claims according to prompt payment standards.
  • Explore ways to streamline coding and billing policies to reduce the administrative complexity of coding for claims.
  • Develop process that expedites health plan credentialing.

Additionally, the guidance indicates that it would not be appropriate for carriers to require prior authorization of COVID-19 treatment or to conduct retrospective reviews to deny emergency or inpatient hospital services for COVID-19 treatment.

This requirement falls on insurers, but employers should also familiarize themselves with this guidance in case any employees ask about it.

Bulletin 2020-28 »

Massachusetts Exchange Special Open Enrollment

September 29, 2020

On September 14, 2020, Commissioner Anderson released Bulletin 2020-27, which announces a special open enrollment period on the Commonwealth Health Insurance Connector Authority (the “Connector”). As background, states with their own exchange can implement special enrollment periods that lengthen the standard annual exchange period. The Connector has chosen to do so this year, providing that the open enrollment period will begin November 1, 2020, and end on January 23, 2021.

While this change will affect individuals that will enroll on the Connector, employers should be mindful of this extension in case there are employees who seek to drop coverage under their plans to take advantage of the Connector’s special open enrollment period.

Bulletin 2020-27 »

Time Extension Granted for PFML Private Plan Exemption

September 01, 2020

On August 12, 2020, the Massachusetts Department of Family and Medical Leave (DFML) published new guidance relating to an extension for PFML private plan exemptions. According to the guidance, for employers that currently have an exemption from remitting contributions to the Family and Employment Security Trust Fund for the period beginning October 1, 2019, and ending September 30, 2020, DFML is extending the private plan exemption until December 31, 2020. The guidance also states that renewal applications will not be accepted before November 30, 2020. On November 30, 2020, the renewal application period will open for employers with fully insured private plans. Employers must renew their PFML exemption in MassTaxConnect by providing DFML with the policy form number via an Insurance Declaration Document signed by the carrier on or before December 31, 2020. This number will be located on the PFML policy forms that will be provided to the employer by their PFML insurance carrier. Lastly, employers that intend to renew and switch to a self-insured plan may do so beginning on October 1, 2020, by logging on to the employer’s PFML account in MassTaxConnect to complete the renewal application.

Massachusetts employers interested in the exemptions should review the new guidance and work with their carriers in renewing their applications.

PFML Guidance »

Carriers Must Cover Certain Contraceptives Without Cost Sharing

August 18, 2020

On August 7, 2020, the Division of Insurance issued Bulletin 2020-26, requiring insurance carriers to provide contraceptives without cost sharing. As background, the ACA’s preventive care mandate was interpreted to require coverage of contraceptives. Massachusetts followed suit and incorporated the requirement to offer contraceptives in Massachusetts law through Chapter 120 of the Acts of 2017. This bulletin updates Massachusetts’ guidance on this requirement.

Specifically, the bulletin discusses the different FDA-approved contraceptive methods and clarifies that carriers can choose to cover more than one product of each method (and could even charge for additional products) as long as at least one version is provided without cost sharing. Carriers must also provide a specific contraceptive without cost sharing if an individual’s physician recommends that particular product based on a medical determination. Additionally, coverage for voluntary female sterilization procedures and FDA-approved emergency contraception must be allowed without a prescription. The bulletin goes on to require that carriers provide coverage for patient education and counseling on contraception and follow-up services related to the contraception.

The bulletin exempts churches or qualified church-controlled organizations from its requirements provided that the church gives employees a written notice stating that they will not offer contraceptives or certain methods for religious reasons, and defines such an organization.

The bulletin and Chapter 120 are already effective and insurers must ensure continuing compliance. Employers should be aware of this guidance.

Bulletin 2020-26 »

Final Regulations on Paid Family Medical Leave Released

August 18, 2020

On July 24, 2020, the Department of Family and Medical Leave released the final regulations for the Paid Family and Medical Leave Law (PFML). As background, Massachusetts employers must provide paid family and medical leave beginning in January 2021. The leave is funded through a payroll tax. (See the July 10, 2018, and the February 5, 2019, editions of Compliance Corner for discussions of the PFML and the proposed rules.)

The final regulations make a number of changes to the proposed rules. Some of the major revisions are as follows:

  • Employers that are seeking an exemption due to providing a private plan must provide leave to all employees, covered workers and former employees in order for their private plan to be exempted.
  • Covered individuals must provide notice to their employer before they apply for PFML benefits, otherwise, their application can be rejected.
  • Covered individuals must submit their application at least 30 days, but no more than 60 days, in advance of the leave unless they are reasonably unable to do so.
  • Covered individuals with multiple employers will have their weekly benefit amount calculated based on wages for a specific employer, but they are not required to take leave from each employer at the same time.
  • Substance use disorders can qualify as a serious health condition that would allow the use of PFML for treatment of the condition.
  • Intermittent leave can be taken in 15-minute increments, but payment of PFML benefits will not be paid out in requests of less than eight hours.
  • The wages or wage replacement benefits that will reduce PFMLA have been adjusted to include benefits received through an approved, exempted private plan or any wages that are received from another employer or self-employment.
  • There will be an initial seven-day waiting period for every application for benefits, with the exception of PFML for pregnancy or recovery from childbirth. Also, no more than 12 weeks of leave benefits are permitted in a year, even if there are multiple births.
  • The final rules also make changes to many of the definitions in the law.

Employers should review the final regulations as they will impact employers’ compliance with the PFML, which employees will be able to take as of January 1, 2021.

PFML Final Regulations »

Updated Guidance on COVID-19 Testing

July 21, 2020

On July 8, 2020, the Division of Insurance issued Bulletin 2020-23, updating Bulletins 2020-02 and 2020-16 to communicate that they expect insurance carriers to cover polymerase chain reaction (PCR) and antigen testing of COVID-19 for symptomatic individuals, those that are in close contact with someone who has been diagnosed with COVID-19, and any asymptomatic individual that is admitted to a Massachusetts healthcare facility.

Additionally, the division expects carriers to:

  • Establish network arrangements with dedicated “pop-up” locations and drive-through testing sites so that PCR and antigen tests are available in-network
  • Ensure access to COVID-19 at-home testing, when the test is ordered by a provider
  • Eliminate prior approval requirements for PCR and antigen test when medically appropriate
  • Relax out-of-network requirements and procedures for access to testing or urgent treatment
  • Forgo any cost sharing for COVID-19 testing, counseling and vaccinations

The guidance also indicates that the division encourages carriers that serve as plan administrators of self-funded plans to comply with these guidelines.

These requirements fall on insurers, but employers should also familiarize themselves with this guidance in case any employees ask about it.

Bulletin 2020-23 »

Continued Relaxation of Prior Authorization Procedures for COVID-19

July 07, 2020

On June 25, 2020, the Division of Insurance issued Bulletin 2020-21, requiring insurance carriers to continue to provide flexibility because of the COVID-19 public health crisis. Specifically, the bulletin requires carriers to continue to:

  • Forego prior authorization reviews or concurrent reviews for any scheduled surgeries and behavioral health or nonbehavioral health admissions at acute care and mental health hospitals for a period lasting through September 30
  • Devote carrier resources to assist hospitals with discharge planning
  • Provide hospitals additional time to respond to carrier request for claims review information or to process internal and external appeals and document claims
  • Delay audits of hospital payments
  • Process all clean claims according to prompt payment standards
  • Explore ways to streamline coding and billing policies to reduce the administrative complexity of coding for claims
  • Develop a process that expedites health plan credentialing

Additionally, the guidance indicates that it would not be appropriate for carriers to require prior authorization of COVID-19 treatment or to conduct retrospective reviews to deny emergency or inpatient hospital services for COVID-19 treatment.

This requirement falls on insurers, but employers should also familiarize themselves with this guidance in case any employees ask about it.

Bulletin 2020-21 »

Flexibility with Early Intervention Services Due to COVID-19

June 23, 2020

On June 8, 2020, the Division of Insurance issued Bulletin 2020-19, requiring insurers to provide more time for early intervention services because of the COVID-19 crisis. As background, Massachusetts special education statutes require insurers to provide early intervention services for children up to age three. These services are considered medically necessary and allow the education system to develop individualized educational programs for any children with special educational needs.

Considering COVID-19, this bulletin requires insurers to extend coverage for early intervention services to certain children who turned three between March 15, 2020, and August 31, 2020. The extension should continue until the services have been provided to the children or until October 15, 2020, whichever occurs sooner.

This requirement falls on insurers, but employers should also familiarize themselves with this guidance in case any parents ask about it.

Bulletin 2020-19 »

Exchange Special Enrollment Period Extended

May 27, 2020

On May 21, 2020, Commissioner Anderson released Bulletin 2020-18, extending the special enrollment period on the Commonwealth Health Insurance Connector. Now, uninsured Massachusetts residents can enroll in coverage on the Connector through June 23, 2020.

Employers with employees in Massachusetts should be aware of this option should employees need to enroll in a plan on the exchange due to the termination of their employment or eligibility under the employer’s plan.

Bulletin 2020-18 »

COVID-19 Testing Guidance Updated

May 27, 2020

On May 18, 2020, Commissioner Anderson released Bulletin 2020-16, which updates the Division of Insurance’s guidance on COVID-19 testing. The bulletin updates Bulletin 2020-02, and reiterates the division’s expectations of insurance carriers. Specifically, the division expects carriers to:

  • Establish dedicated help lines to respond to calls about COVID-19.
  • Relax prior approval requirements and procedures.
  • Eliminate prior approval requirements for antigen and polymerase chain reaction (PCR) testing for COVID-19.
  • Relax out-of-network requirements and procedures when access to testing or urgent treatment is unavailable in-network.
  • Forego any cost sharing for medically necessary COVID-19 testing, counseling and vaccinations when in-network coverage is unavailable.
  • Cover PCR or antigen tests designed to detect the presence of the novel coronavirus when a covered patient has any symptoms or has been exposed to COVID-19.
  • Cover antibody tests when such tests are being conducted consistent with Department of Public Health and CDC guidance.

This guidance does not provide any compliance obligations for employers, but they should familiarize themselves with the directive.

Bulletin 2020-16 »

FAQs During COVID-19 Public Health Crisis

April 28, 2020

On April 9, 2020, the Division of Insurance released a set of frequently asked questions (FAQs) concerning the COVID-19 health crisis. Although the FAQs are meant to be consumer-facing, they answer a number of questions concerning business decisions and their impact on employer-sponsored health insurance, as well as questions concerning the impact of furloughs on participants’ health coverage. For example, the FAQs address what employees can do if they are furloughed or laid off and need to keep their health coverage. They also remind individuals of the special enrollment period for the exchange.

Additionally, the FAQs answer questions concerning coverage for testing and treatment of COVID-19, confirming that there should be no out-of-pocket costs associated with COVID-19 testing or treatment. The FAQs also discuss how participants can go about obtaining needed prescriptions and non-COVID-19 treatment for health conditions.

The FAQs don’t necessarily provide any novel information. However, the document serves as a sort of one-stop resource that summarizes and references everything that the Division of Insurance has done thus far. Employers can review the FAQs if they have any COVID-19-related insurance questions.

Frequently Asked Questions During COVID-19 (Coronavirus) Public Health Crisis »

Exchange Special Enrollment Period Extended

April 28, 2020

On March 30, 2020, Commissioner Anderson released Bulletin 2020-09, extending the special enrollment period on the Commonwealth Health Insurance Connector. Now, uninsured Massachusetts residents can enroll in coverage on the Connector through May 25, 2020, which is a month longer than the original special enrollment period that was granted through Bulletin 2020-03.

Employers with employees in Massachusetts should be aware of this option should employees need to enroll in a plan on the exchange due to the termination of their employment or eligibility under the employer’s plan.

Bulletin 2020-09 »

Updated Guidance on COVID-19 Treatment Requirements

April 28, 2020

On April 9, 2020, Commissioner Anderson released Bulletin 2020-13, which supplements prior bulletins concerning the appropriate coverage of treatment for COVID-19. Specifically, the bulletin modifies Bulletins 2020-02 and 2020-04, by communicating how insurers are expected to cover COVID-19 testing and treatment on an in- and out- of network basis. It also communicates that the Division of Insurance expects that insurers will allow for treatment at acute care hospitals.

Additionally, out-of-network emergency and inpatient treatment should be paid at the provider’s contracted rate, or if there is no contract between the hospital and the insurer, services should be paid at a rate equal to 135% of the rate paid by Medicare for those services. The bulletin also indicates that they expect insurers acting as TPAs for self-funded plans to encourage plan sponsors to meet these same guidelines.

While this bulletin doesn’t impose any additional obligations on employers, they should familiarize themselves with this guidance.

Bulletin 2020-13 »

Fair Labor Division FAQs on COVID-19

April 14, 2020

On April 10, 2020, the Attorney General’s Fair Labor Division (FLD) provided a set of frequently asked questions about employee rights and employer obligations related to COVID-19. While a majority of the questions address employment and labor law concerns, a couple of questions focused on leave provided by the Massachusetts earned sick time law and how it differs from the leave provided by the FFCRA.

Specifically, FAQ eight indicates that earned sick time can be used if a public health official or health care provider requires an employee or family member to quarantine or if the public health official or health care provider recommend such a quarantine and the employee follows their recommendation. The FAQ encourages, but does not require, that earned sick time be allowed if an employee misses work because their child’s school is closed due to a stay-at-home or shelter-in-place order from a state or local authority. However, it does remind employers that FFCRA leave would be required for that situation.

Additionally, FAQs 12-14 address the FFCRA and link to the DOL’s guidance on the law. FAQ 13 clarifies that if employees are eligible for both FFCRA leave and Massachusetts earned sick leave, they may choose to take FFCRA leave first and to save the Massachusetts earned sick leave for later use.

Employers should familiarize themselves with this guidance in order to ensure that they are meeting the different employment obligations.

Frequently Asked Questions About COVID-19: Employee Rights and Employer Obligations »

COVID-19-Related Guidance

March 31, 2020

The Division of Insurance issued a number of bulletins addressing the COVID-19 crisis. Those bulletins are summarized here:

  • Special Enrollment Period for Exchange: On March 12, 2020, Commissioner Anderson released Bulletin 2020-03, announcing a special enrollment period on the Commonwealth Health Insurance Connector. Currently uninsured Massachusetts residents can enroll in coverage on the Connector through April 25, 2020. Employers with employees in Massachusetts should be aware of this option should employees need to enroll in a plan on the exchange due to the termination of their employment or eligibility under the employer’s plan.
  • Emergency Measures to Address and Stop the Spread of COVID-19: On March 16, 2020, Commissioner Anderson released Bulletin 2020-04, intending to expand the use of telehealth to treat medically necessary health conditions in order to impede the transmission of the coronavirus. The bulletin modifies Bulletin 2020-02 by requiring carriers to forego any prior authorization requirements or cost sharing for COVID-19 treatment via telehealth. The bulletin also requires carriers to cover telehealth services as if the service is provided on an in-person basis.
  • Flexibility in the Issuance and Administration of Insurance: On March 23, 2020, Commissioner Anderson released Bulletin 2020-05, directing carriers to take steps to help address concerns about maintaining coverage and preserving the insurance market during the COVID-19 crisis. The Commissioner requests that carriers communicate and allow flexibility as it pertains to payment of premiums and continuation of coverage. Specifically, carriers should explain grace periods that are available, work with employers and individuals experiencing financial hardships, and explore ways to relax due dates for premiums.
  • Administration of Prescription Drug Benefits During COVID-19 Crisis: On March 26, 2020, Commissioner Anderson released Bulletin 2020-06, requesting that carriers take steps to help address concerns about prescriptions. Carriers are expected to work with pharmacies to limit the spread of the coronavirus by being flexible with signature requirements and allowing for mailed prescriptions and early refills, where appropriate. The bulletin also expects carriers to establish prior authorization systems to prevent the hoarding of chloroquine and hydroxychloroquine.
  • Making Consumer Information Available During COVID-19 Crisis: On March 26, 2020, Commissioner Anderson released Bulletin 2020-07, notifying carriers that they should make appropriate information available via consumer phone lines and their websites. Specifically, they should be prepared to provide resources that describe coverage benefits and to ensure that providers and vendors are aware of the benefits and services that are available to address COVID-19.

Much of this guidance is directed towards insurance carriers. However, employers based in Massachusetts should familiarize themselves with this guidance as they contend with participants being affected by COVID-19.

Bulletin 2020-03 »
Bulletin 2020-04 »
Bulletin 2020-05 »
Bulletin 2020-06 »
Bulletin 2020-07 »

Coronavirus Testing and Treatment to Be Provided Without Cost Sharing

March 17, 2020

On March 6, 2020, Commissioner Anderson released Bulletin 2020-02, requiring insurers to provide coronavirus testing and treatment without cost sharing. Additionally, the bulletin requires insurers to relax prior approval requirements and out-of-network requirements and procedures for participants who may need urgent testing and treatment. Employers can notify their plan participants that coronavirus testing and treatment will be provided without cost sharing.

Bulletin 2020-02 »

New Bulletin on Coverage for Tobacco Cessation Products Without Cost-Sharing

January 07, 2020

On December 30, 2019, the Division of Insurance published Bulletin 2019-10, relating to state and federal requirements that carriers cover certain tobacco cessation products without consumer cost-sharing. According to the bulletin, on November 27, 2019, changes were made to Massachusetts law to enhance tobacco cessation benefits. Specifically, the new laws require carriers to provide members with coverage for tobacco cessation counseling and all generic US FDA-approved tobacco cessation products.

In addition, under federal law and as recommended by the US Preventive Services Task Force (USPSTF), preventive services must be provided without cost-sharing. Among the preventive services recommended by USPSTF is screening for all adults for tobacco use and providing tobacco cessation interventions for those who use tobacco. Therefore, when prescribed by a health care provider, carriers may not require any member cost-sharing for either tobacco cessation counseling or any of the generic FDA-approved tobacco cessation products. Those include nicotine gum, nicotine patch, nicotine lozenges, nicotine oral or nasal spray, nicotine inhaler, bupropion, and varenicline.

Employers with fully insured plans in Massachusetts should review the bulletin, although it contains no new employer compliance obligations.

Bulletin 2019-10 »

New Bulletin Addresses Coverage Guidelines for Pain Management Alternatives to Opiate Products

September 04, 2019

On August 29, 2019, the Division of Insurance published Bulletin 2019-06, which provides coverage guidelines for pain management alternatives to opiate products. According to the bulletin, the Division expects carriers to take all appropriate steps to ensure that fully insured plans make coverage for methods other than opiate treatment available to covered persons to manage pain. Specifically, the plan must provide at least two alternative medication treatment options and at least three alternative non-medication treatment modalities. Such alternatives may include other types of prescriptions, supplies, services or treatments that the carrier may determine are appropriate for covered individuals.

Carriers must also make appropriate updates to drug formularies and network directories, so as to make access to such treatment options readily available to covered persons. Also, carriers that identify an alternative method that involves coverage for services provided by specific types of providers (such as massage therapists, acupuncturists, and/or chiropractors) will be required to contract with a sufficient number of providers to have the alternative services available throughout the carrier’s service area.

There are no new employer obligations under the new bulletin, but employers with fully insured plans in Massachusetts should be aware of the coverage requirements.

Bulletin 2019-06 »

New Bulletin Addresses Coverage for Naloxone

September 04, 2019

On August 29, 2019, the Division of Insurance published Bulletin 2019-05, which relates to coverage for naloxone. As background, as part of Massachusetts’ commitment to addressing the opioid epidemic, the Department of Public Health issued a statewide standing order for the broad distribution of naloxone and other opioid antagonists to any Massachusetts resident. The bulletin is meant to provide guidance to carriers regarding that standing order.

According to the bulletin, an "opioid antagonist" means "naloxone or any other drug approved by the [FDA] as a competitive narcotic antagonist used in the reversal of overdoses caused by opioids." The bulletin requires carriers to take whatever steps are necessary to modify their systems so that covered persons can obtain naloxone without the need to present a prescription written to the covered person. The bulletin states that the Division would consider it appropriate if carriers establish criteria that only require covered persons to go through prior authorization if they seek to obtain more than two naloxone kits per member within a 30-day period (if the person wants more than two kits within that 30-day period, the carrier could utilize prior authorization).

The bulletin contains no new employer obligations. Employers with fully insured plans in Massachusetts, though, will want to be aware of the coverage requirements and the general focus on coverage of naloxone and other opioid antagonists.

Bulletin 2019-05 »

New Rules on Copayments for Partial Prescription Refills for Opioid Products

September 04, 2019

On August 29, 2019, the Division of Insurance published Bulletin 2019-04, which relates to copayments for partial prescription fills of opioid products. According to the bulletin, carriers should take steps, in collaboration with their network pharmacies, to ensure that covered individuals who elect to fill a prescription for certain narcotic substances (opioids, as identified by the Massachusetts Department of Public Health) in a lesser quantity than prescribed should not be subject to cost-sharing and copayments when filling the remainder of the prescription.

The bulletin adds compliance obligations only for carriers, so there is no new employer requirement. But employers with fully insured plans in Massachusetts should be aware of the bulletin and the requirements, should employees ask questions regarding coverage.

Bulletin 2019-04 »

PFML Implementation Dates Delayed

July 09, 2019

On June 11, 2019, Gov. Baker, along with state House and Senate leadership, announced an agreement to implement a three-month delay to the July 1 contribution start date for the state’s Paid Family and Medical Leave (MA PFML) program. Gov. Baker and the legislative leaders issued this statement:

To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three-month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.

In response, on June 13, 2019, the MA legislature passed an emergency bill to formalize the delay; Gov. Baker signed the bill (creating Chapter 21) on June 14, 2019. In addition, on June 14, 2019, the MA Department of Family and Medical Leave (DFML) published a notice to MA employers regarding the MA PFML delay. As a result of those events, employers will be required to begin taking deductions from wages or payments for services rendered by employees (and contractors) and start paying their portion of MA PFML costs on October 1, 2019 (rather than the original date of July 1, 2019). MA PFML benefits are not actually available until January 2021 — that effective date is not altered by this three-month delay announcement. Along with the delay and to offset the shorter period for collections, the DFML employer notice states that the contribution rate has been adjusted from 0.63% to 0.75% of wages. That will raise the tax for an employee earning the state average weekly wage from $872 to $1,083 per year.

The DFML also announced several other related extensions. First, employers now have until September 30, 2019, to notify all covered individuals (employees and contractors) regarding their MA PFML rights and obligations. DFML is in the process of updating model notices, and will post them on the PFML website when they’re available. Second, employers that offer paid leave benefits that are at least as generous as those required under MA PFML may apply for an exemption from the obligation to remit contributions. Employers now have until December 20, 2019, to apply for an exemption for contributions relating to the October 1 contribution period.

The DFML also published the PFML final regulations. The delay gives both employers and the MA government more time to prepare for MA PFML implementation, and time for carriers to potentially create private plans that can be exempted from the rules. In the meantime, employers should continue to prepare to comply with the MA PFML law, even with the slight delay in contributions. We will continue to monitor developments, including the posting and publishing of final regulations, and communicate accordingly.

Press Release »
Chapter 21 »
Notice to MA Employers About PFML Delay »
Final Regulations »

Updated PFML Regulations

April 16, 2019

On March 29, 2019, the MA Executive Office of Labor and Workforce Development released a revised version of the proposed Paid Family and Medical Leave (PFML) regulations. This new version clarifies some of the key provisions of the PFML law, including the private plan exemption, the July 1 payroll deductions, benefits accrual during PFML leave, the interaction of PFML leave and paid time off policies, and the applicability to contract workers paid on an IRS Form 1099-MISC.

As discussed in the February 5, 2019, edition of Compliance Corner, MA’s PFML creates an insurance program funded by payroll contributions from employers and covered individuals to provide eligible employees with up to 26 weeks of paid, job-protected family and medical leave absence. The leave doesn’t begin until January 1, 2021, but employers must begin deducting employee premiums by July 1, 2019.

The law includes employer notice requirements, including a PFML workplace poster that must be displayed in a conspicuous location at each MA office location. Employers must also provide written notice to current employees (full-time, part-time, seasonal), contracts, and new employees within thirty days of hiring employees and independent contractors of their PFML benefits.

Employers should coordinate with their payroll provider to prepare for the upcoming employee premium deductions to begin by July 1, 2019, and notify the employees of the upcoming obligation. The final regulations are expected to be released prior to the July 1, 2019 deadline. There are also two planned public hearings scheduled to begin in May – so there may be more to come on these rules.

Guide to PFML for MA Employers »

Additional employer information »

Workplace Poster »

Proposed Regulations for Family and Medical Leave

February 05, 2019

On Jan. 23, 2019, MA’s Dept. of Family and Medical Leave (the department) issued proposed regulations to clarify the procedures, practices and policies applicable to employers and employees under the MA Family and Medical Leave Law (MFMLL). As background, the MFMLL requires all private employers in MA to provide covered individuals with up to twelve weeks of paid family leave and up to 20 weeks of medical leave. The paid leave is funded through a payroll tax. All employers, regardless of headcount, are required to provide family and medical leave to eligible employees. Employers are required to begin the payroll tax as of July 2019 and employees may begin taking the leave as of Jan. 1, 2021. The Dept. of Family and Medical Leave was created by the MFMLL to oversee the law.

Under the proposed regulations, employers (including self-employed individuals) must establish an account with the MassTax connect system in order to make the filings and contributions required by the MFMLL. In addition, an employer must submit a quarterly filing with the MassTax connect system that includes each employee’s name, social security number, wages paid or other earnings. All full-time, part-time, seasonal and temporary employees on the payroll each pay period must be included in the quarterly filing. In addition, employers that have a workforce that is more than 50 percent independent contractors must treat such workers as employees for purposes of calculating the average.

Based on the quarterly report, the department will calculate the total quarterly contribution amount owed by each employer, which must then be remitted within 30 days after the end of the calendar quarter. The penalty for failing to make the required employer contributions is 0.63 percent of the total annual payroll for each year of the failure. This penalty is in addition to the total amount of benefits paid to covered individuals for whom the employer failed to make contributions. Employers with an average of less than 25 employees may not be required to pay the employer portion of the premium for family and medical leave. To determine whether an employer is under the 25 employee average, an employer must include all workers referenced above (including independent contractors) that are included on the payroll during each pay period and divide by the number of pay periods of the previous calendar year.

Employers with a private plan that provides at least the same rights, protections and benefits to employees as provided under the MFMLL may be exempt from the employer portion of the payroll tax for medical coverage, leave coverage or both. The proposed regulations do not provide much detail, but generally, to be exempt, an employer must submit an application of the private plan for approval to the department every year. Exemptions must be renewed annually. There is an appeals process should an employer feel the exemption is improperly denied.

As a reminder, effective July 1, 2019, MA employers will be required to:

  1. Post a workplace notice (prepared or approved by the department) in a conspicuous place of each premises
  2. Provide all new employees within 30 days of hire a written notice (provided or approved by the department) containing specific information about the MFMLL
  3. Begin implementation of the payroll tax of .63 percent on the first $128,400 (to be adjusted annually) of an individual’s annual earnings paid into the fund created by the MFMLL.

The department will hold a number of listening sessions to gather input from the public. The proposed regulations are expected to be finalized on or before July 1, 2019. MA employers should review the proposed regulations and be prepared to begin paying the applicable payroll tax as of July 1, 2019. Employees may begin to apply and receive paid leave under MFMLL beginning January 2021.

Draft Regulations »

Mandated Services for Child-Adolescent Mental Health Disorders

January 23, 2019

On Dec. 14, 2018, the Div. of Insurance and Dept. of Mental Health jointly issued Bulletin 2018-07 to clarify certain mandated benefits for child-adolescent services. Specifically, the bulletin describes the benefits required to treat and diagnose mental health disorders of children and adolescents and highlights the importance of providing such benefits on a non-discriminatory basis.

To clarify the coverage requirements, the bulletin highlights services for intermediate care and outpatient services, such as in-home behavioral therapy, family support and training, mobile crisis intervention and intensive care coordination. It also provides carriers two separate timelines for ensuring that any necessary changes to the evidence of coverage and other documents are timely implemented and accurately represent the benefits for child-adolescent services in a manner consistent with the bulletin. One timeline was provided for family support and training and therapeutic mentoring and another timeline encompasses all other applicable services.

The changes mandated by this bulletin must be incorporated into insured health plan certificates of coverage, utilization criteria or other rating/claims systems for plans issued or renewed on and after July 1, 2019. To assist carriers in the timely implementation of the rules, carriers are expected to file materials with the Div. of Insurance that confirm they are following the bulletin’s timelines.

Employers in MA should make note of the carrier requirements detailed in this bulletin. Though the bulletin is directed at carriers, it might also impact the employer regarding the insurance mandate, coverage requirements, etc.

Bulletin 2018-07 »

Massachusetts Adds New HIRD Submission Requirement For Employers

November 13, 2018

On Oct. 24, 2018, MA DOL published a new FAQ document regarding the new Health Insurance Responsibility Disclosure (HIRD) reporting requirement that goes into effect for 2018. The HIRD is an online reporting requirement that employers must complete on or before Nov. 30, 2018.

Though this new 2018 HIRD form has the same name as an earlier 2006 form requirement, it doesn’t relate to this prior filing. The previous HIRD form required employers to provide the number of full-time and part-time employees and whether the employer offered subsidized health insurance coverage. This HIRD requirement was suspended after it was determined to be redundant under the ACA’s employer mandate. The new HIRD does not have any individualized information and does not require employees to provide any information.

Employers with at least six employees (including all categories of employees) in MA, (regardless of whether they offer health insurance) must state whether they offered to pay or arrange for the purchase of health care insurance and information about such health care insurance such as: the total employer and employee premium cost, benefits and coverage levels offered, the in-network deductible, the maximum out-of-pocket expenses, cost-sharing details, eligibility criteria, whether the plan meets the MA minimum creditable coverage requirements, and other information deemed necessary by the division. If an employer knowingly falsifies or fails to file any required HIRD information, they may be subject to a penalty of not less than $1,000 or more than $5,000 for each violation.

This new HIRD form is an online submission that collects employer-level information about employer-sponsored health plans to assist MassHealth in identifying members who can participate in and who may be eligible for premium assistance from MassHealth. To complete the form, employers visit the MassTaxConnect online portal that is being administered by MassHealth and the Department of Revenue. Under the MassHealth program, if an employee qualifies for premium assistance, MassHealth will pay the subsidy directly to the employee. Information collected through this form shall not be used to deny or terminate MassHealth eligibility for non-disabled persons who would otherwise qualify for a program of medical benefits who have access to employer sponsored health insurance.

Though the employer is ultimately responsible for ensuring the information is provided in a timely and accurate manner, the published FAQ indicates that the form may be completed by an employer or its payroll vendor. Employers that maintain multiple plan options must disclose each plan.

The form is available online now and employers must complete the online filing by Nov. 30, 2018 (and during the filing period of Nov. 1 through Nov. 30 annually thereafter).

HIRD FAQ »

Massachusetts Changes Allowable Payments Owed For Prescribed Schedule II Narcotics

October 03, 2018

On Aug. 9, 2018, Gov. Baker signed H.B. 4742 into law, creating Chapter 208. The new law intends to bolster efforts to mitigate the effects of the ongoing opioid crisis in Massachusetts. Specifically, effective Nov. 7, 2018, if plans provide coverage for any Schedule II narcotic substance that is subject to cost-sharing, plan participants that fill prescriptions in lesser quantities can’t be subject to additional copayments or other payments when they fill the remaining portions of these prescriptions.

The new law becomes effective on Nov. 7, 2018. The law contains no new employer obligations, but those employers with fully-insured plans in MA should be aware of the new requirement to limit additional copayments or other payments for Schedule II narcotic substances.

Chapter 208 »

MA Law on AHPs and MEWAs Still Applies

August 07, 2018

On July 27, 2018, Commissioner of Insurance Anderson issued Bulletin 2018-03 to remind health insurance carriers of the continuing applicability of the MA health insurance legal requirements to association health plans (AHPs) and multiple employer welfare arrangements (MEWAs).

As background, on June 19, 2018, the EBSA issued a final rule related to the creation and maintenance of AHPs under ERISA. The rule modified an AHP requirement that the group or association have a commonality of interest and further prevented associations that exist solely for the purpose of purchasing or providing health benefits to its members. Under the new AHP rule, the group or association must have at least one substantial business purpose unrelated to the provision of benefits, although the principal purpose may be the provision of benefits. That said, the rule clarifies that it doesn't, in whole or in part, preempt state regulation of MEWAs.

This MA bulletin reiterates the Division of Insurance's understanding that the federal AHP regulation doesn't limit MA law for individual and small group coverage. In other words, MA law continues to apply to health coverage offered to Massachusetts-based individuals and small employers, including eligible small businesses that are within a MEWA.

As background on MA's laws applicable to MEWAs, it's important to note that small employers participating in a fully insured MEWA in MA will be rated as a small group and must be in compliance with the state's small group insurance requirements. In other words, a fully insured MEWA in MA would not be rated as an aggregate large group. Also, self-insured MEWAs are required to be licensed as an insurer.

The bulletin also reminds health carriers and licensed producers that MA law continues to require each adult resident to have health coverage that meets the minimum creditable coverage (MCC) standards as set by the Health Connector unless plans meeting these standards are deemed unaffordable to that person according to the Health Connector standards.

The main purpose of this letter was to remind insurers doing business in MA that the state retains the right to regulate AHPs or MEWAs regardless of changes to federal law. Employers should be aware that their participation in such a plan will likely fall under MA's jurisdiction.

Bulletin 2018-03 »

Paid Family and Medical Leave Law

July 10, 2018

On June 28, 2018, Gov. Baker signed into law Chapter 175M, making Massachusetts the seventh state to provide workers with paid family and medical leave. The new law provides up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave (subject to a combined maximum of 26 weeks total leave in a year). The bill imposes a three year phase-in period, but as of Jan. 1, 2021, all private MA employers must provide “covered individuals” with paid family and medical leave.

Under the law, workers on paid leave will earn 80 percent of their wages (capped at 50 percent of the state average weekly wage) and up to 50 percent of their wages beyond that amount (capped at $850/week, adjusted annually). Unlike federal FMLA that impacts employers with at least 50 employees, the state law will apply to all employers with one or more employees working in MA and will be available to eligible new employees without any hours worked or service time requirements. The law also will apply to certain former employees and self-employed workers.

The paid leave program will be paid by a newly created state trust fund, which will be funded by a payroll tax of 0.63 percent that can potentially be split between the employer and employee (slated to begin by July 1, 2019). The program will be administered by a newly established Department of Family and Medical Leave that is tasked to craft proposed regulations by March 31, 2019. The new law includes notice requirements and associated penalties for noncompliance.

This new law requires significant changes for private employers with employees in MA. Though the funding will not begin until July 1, 2019 and the law’s details have not yet been provided, it is important that employers prepare and consider consulting with outside counsel to review policies and practices in response to this new law.

Chapter 175M »
Press release »

Massachusetts DUA Releases Updated FAQs on EMAC Contributions That Incorporate the Final Regulations

May 15, 2018

The Massachusetts Department of Unemployment Assistance (DUA) recently released an updated set of FAQs that add an additional five Q&As to generally incorporate the final regulations for the Employer Medical Assistance Contribution (EMAC).

As background, the EMAC rules generally impose additional employer fees on employers with at least five employees, regardless of whether the employers offer health coverage to their employees. In August 2017, MA passed “An Act Further Regulating Employer Contributions to Health Care” (the Act) that, among other things, increased the EMAC and imposed a tax penalty, or “EMAC Supplement.” The Act applies only for 2018 and 2019, and it increases the EMAC fee from $51 per employee to $77 per employee. It also adds a temporary EMAC supplement contribution (for 2018 and 2019) that applies when non-disabled employees who aren’t eligible for an employer group health plan have coverage through the state (which may include MassHealth or the MA ConnectorCare Program). This EMAC supplement is based on the wages of employees who receive health-subsidized coverage and is applied to part- and full-time employees. The time-limited increase in the EMAC and additional supplement are intended to help offset the costs for employees on subsidized coverage while longer-term reforms are established and implemented.

The EMAC final regulations are generally the same as the proposed regulations but include some minor modifications. One difference is to the definition of “Liability for EMAC Contribution Supplement” that extends the days required for an employee to be covered through MassHealth or ConnectorCare before a payment is assessed. Specifically, the covered employer is liable for a payment of the EMAC Supplement if one or more non-disabled employees receive health insurance coverage through MassHealth or ConnectorCare and coverage continues for at least 56 days (as opposed to the 14 days provided for in the proposed regulations). Also note that the employer won’t be liable for a payment for employees who only enroll in the MassHealth Premium Assistance Program.

A second difference is that the final regulations clarified that cities, towns, regional school districts and educational collaboratives aren’t considered covered employers and, therefore, aren’t subject to or liable for the EMAC supplement, except under limited circumstances. The final regulations also include a provision on how to determine the date of receipt of an electronically transmitted notice of determination by the DUA.

Employers should work with tax counsel and payroll providers to make adjustments relating to the increased EMAC and potential supplemental contributions as well as any potential change within the final regulations’ provisions relating to the payment and collection of contributions or payments.

EMAC FAQ »
EMAC Final Regulations »
Additional information »

New Pregnancy Discrimination Law in Effect April 1, 2018

April 03, 2018

On April 1, the Massachusetts Pregnant Workers Fairness Act (MPWFA) takes effect. The law, enacted in July 2017 as Chapter 54, prohibits Massachusetts employers from denying pregnant women and new mothers a reasonable accommodation for their pregnancies and any conditions relating to their pregnancies. The law applies regardless of whether the pregnancy or related condition is considered a ”disability” under other federal or state discrimination laws. As background, the federal Pregnancy Discrimination Act of 1978 (PDA) already requires that pregnant employees receive the same treatment as all other employees. The MPWFA, though, goes a bit further by creating an accommodation mandate and by creating guidelines that protect pregnant and nursing employees from adverse action relating to pregnancy, pregnancy-related conditions and nursing. The MPWFA also applies to employers with six or more employees (whereas the PDA applies to those with 15 or more).

Under the MPWFA, employers may not discriminate against employees based on pregnancy, childbirth, need for maternity leave or related conditions, including lactation, unless the discrimination is based on a bona fide occupational qualification. Employers must provide a reasonable accommodation to an employee who’s disabled due to pregnancy, miscarriage, abortion, childbirth or related recovery. The only exception is if doing so causes undue hardship for an employer. This is a high bar to meet. Specifically, “undue hardship” means that accommodations require significant difficulty or expense on the employer based on the nature and cost of the accommodation, employer’s overall financial resources and employer’s size.

In accommodating an employee, employers must engage in a timely, good-faith and interactive process with the employee to determine whether a reasonable accommodation would enable the employee to effectively perform her essential job functions. Reasonable accommodations may include (but are not limited to): a temporary leave of absence, shift breaks, modified equipment, light-duty assignment, assistance with manual labor or modified work schedule. An employer may request that the employee submit documentation from a health care provider.

Employers should have provided written notice to existing employees by April 1. They must also provide notice to new employees on an ongoing basis. Further, the employer must distribute the notice to a specific employee anytime the employer has knowledge that the employee is pregnant. The notice may be provided as part of the handbook or a separate written notice. The Massachusetts Commission Against Discrimination (MCAD, which is charged with enforcing the MPWFA) hasn’t yet published a model notice. While not officially sanctioned by the MCAD, it appears that employers may repurpose official guidance provided by the MCAD to use as a notice, as the official guidance includes general provisions, the employer’s obligations, and employee rights, including the right to file a complaint. Similarly, some employers are relying on an MCAD FAQ document, since that also includes pertinent information regarding the MPWFA.

For employers, the MPWFA brings new requirements regarding employees who are pregnant, nursing or have pregnancy-related conditions. While the MCAD guidance and FAQs can provide general information and may potentially serve as a notice for employees, employers should work with outside counsel in developing their pregnancy accommodation strategy and in developing their leave policies in accordance with the MPWFA.

Chapter 54 »
MCAD Official Guidance »
MCAD FAQs »

Massachusetts Division of Insurance Published Bulletin 2017-07

January 09, 2018

On Dec. 19, 2017, the Massachusetts Division of Insurance published Bulletin 2017-07, which relates to the definition of “sensitive health care services.” The new bulletin defines which services are considered “sensitive health care services” and explains that such services should not be identified specifically in carrier summary of payment (SOP) forms. The definition includes all of the following:

  1. Mental health services
  2. Substance use disorder services
  3. Gender transition-related services
  4. Testing, treatment and prevention of sexually transmitted diseases, HIV and AIDS (including pre-exposure prophylaxis (PrEP)
  5. Hepatits B and C testing, treatment and medication
  6. Reproductive and fertility services
  7. Contraceptive and abortion services
  8. Pregnancy testing and counseling
  9. Any visit that includes assessment of sexual risk, pregnancy intention and/or reproductive/sexual/pregnancy coercion
  10. Services related to sexual assault
  11. Domestic violence diagnosis, services, support and counseling
  12. Management of abnormal pap smears
  13. Diagnosis and treatment of vaginal infections
  14. Prenatal care

According to the bulletin, sensitive health care services may be related to any type of provider encounter, including (but not limited to) evaluation, screening, treatment, service, counseling, management and prescribed medications. Carriers are expected to take all necessary steps to ensure that by Feb. 1, 2018, sensitive health care services are excluded from those SOPs distributed to the plan sponsor and covered individuals.

The bulletin contains no new employer obligations, but employers should be aware of the information they (or others) may see in a carrier SOP form. Employers should work with carriers regarding any questions on SOP forms.

Bulletin 2017-07 »

Massachusetts Division of Insurance Published Bulletin 2017-08

January 09, 2018

On Dec. 19, 2017, the Massachusetts Division of Insurance published Bulletin 2017-08. The new bulletin relates to coverage for abuse-deterrent opioid drug products. According to the bulletin, MA law requires that if health insurance is considered “creditable” (as compared to Medicare’s prescription drug coverage), the insurance must provide coverage for abuse-deterrent opioid drugs on the formulary on a basis not less favorable than non-abuse-deterrent opioid drug products covered under the insurance. Thus, plan designs may not provide coverage for abuse-deterrent opioid drugs in a way that is less favorable. For example, for a health plan with differing copays based on the benefit tier of which a drug product is assigned, the carrier must charge the same cost-sharing for an abuse-deterrent drug product as the non-abuse-deterrent drug product that the Drug Formulary Commission (DFC) identifies as chemically equivalent to an abuse-deterrent product. For those abuse-deterrent drug products where DFC hasn’t identified a non-abuse-deterrent equivalent, the carrier is not restricted as to the benefit tier to which the abuse-deterrent drug product is assigned. This includes all utilization processes, including (but not limited to) prior authorization, concurrent review and step therapies.

According to the bulletin, carriers may employ medical management and utilization review processes as permitted under federal and state law, but they’re required to employ systems that don’t treat abuse-deterrent drug products in a manner less favorable than used for non-abuse-deterrent drug products. The bulletin includes a formulary of chemically equivalent substitutions for opioids with a heightened public health risk, which includes the non-abuse-deterrent drug products and their interchangeable abuse-deterrent drug product.

Employers don’t need to do anything new to comply with the bulletin, but they should be aware of the abuse-deterrent opioid drug coverage requirements, should they come up with the carrier or with employees.

Bulletin 2017-08 »

New Law on Coverage of Contraceptives for Fully Insured Plans in MA

November 29, 2017

On Nov. 20, 2017, Gov. Baker signed H4009 into law, creating Chapter 120. The new law, called An Act Relative to Advancing Contraceptive Coverage and Economic Security in our State (ACCESS), is aimed at protecting access to contraception coverage without copayments for women in Massachusetts. Specifically, the new law requires health insurance carriers to cover at least one form of each type of FDA-approved birth control. The law requires coverage of a 12-month supply of prescription contraception after a 3-month trial, emergency contraception and voluntary female sterilization procedures (but doesn’t require coverage of condoms).

While the ACA provides similar contraceptive coverage, President Trump recently issued an executive order that allows more employers to opt out of providing coverage for birth control by claiming religious or moral objections. The new MA law is meant to curb any erosion of the ACA’s contraceptive mandate via the executive order, and goes even further than the ACA requires. As an example, the MA law requires coverage of over-the-counter emergency contraception at pharmacies without a copayment, even without a prescription. It remains to be seen whether any party will challenge the MA law as conflicting with federal law or whether employers in MA will fight the mandate in court based on religious or moral objections (in reliance of the federal executive order).

There’s an exemption for insurance policies purchased by a church or a church-controlled organization. Self-insured plans are also exempt from the state law. The new law takes effect for plans and policies issued or renewed on or after May 20, 2018 (six months following the enactment of the law).

Chapter 120 »
Press Release »

DUA Releases FAQs and Draft Regulations on EMAC Contributions

November 29, 2017

The Massachusetts Department of Unemployment Assistance (DUA) recently released a set of FAQs and draft regulations relating to the Employer Medical Assistance Contribution (EMAC). MA recently increased the EMAC for 2018 and 2019 (from $51 per employee to $77 per employee) and implemented an EMAC supplement contribution (for 2018 and 2019) for non-disabled employees who aren’t eligible for an employer group health plan and have coverage through the state (which may include MassHealth or the MA ConnectorCare Program). The EMAC supplement contribution applies to employers with more than five employees and is five percent of a covered employee's unemployment insurance taxable wages up to $15,000 per year (which results in a cap of $750 per employee).

The draft regulations confirm that the EMAC supplement contribution applies to employers with more than five employees in MA. That number is calculated by dividing the sum of the employer’s three monthly employment levels for the quarter by three. An employment level for each month of the quarter is equal to the number of employees who worked (or received wages) for any part of the pay period that includes the 12th of the month (as reported on the MA unemployment insurance return). There are no exceptions for part-time employees — so the EMAC supplement could potentially apply to both full and part-time employees. However, if an employee has health insurance coverage through MassHealth on the basis of permanent and total disability, the EMAC supplement contribution won’t apply.

The draft regulations address successor employers — those that continue the business following a merger, consolidation, acquisition or other reorganization. Generally speaking, successor employers are responsible for the EMAC supplement contribution, and they aren’t credited for any EMAC supplement contribution paid by the predecessor employer. Employers should work with outside counsel when it comes to EMAC responsibilities in a merger or other business reorganization.

Importantly, the draft regulations confirm that the EMAC increase and supplement contribution applies to nonprofit organizations and governmental entities. The regulations also address overpayments, refunds and general collection processes regarding the EMAC supplement contribution. Overall, employers should work with tax counsel and payroll providers to make adjustments relating to the change in EMAC and potential supplemental contribution.

FAQs »
Draft Regulations »

New Bulletin on Coordination of Benefits for Medical Claims Associated with Motor Vehicle Accidents

November 29, 2017

On Nov. 22, 2017, the Massachusetts (MA) Division of Insurance published Bulletin 2017-06. As background, the Division recently adopted changes to MA coordination of benefits (COB) rules for medical claims associated with motor vehicle accidents. The bulletin is meant to provide clarity on how those COB rules work for claims between fully insured health policies and the personal injury protection (PIP) and medical payment benefits of motor vehicle liability policies.

PIP is a compulsory coverage that’s included in all MA motor vehicle liability insurance policies and can pay up to $8,000 for a claimant’s medical expenses, replacement services, lost wages and funeral expenses. Medical payment benefits, which are optional, can be offered as part of a motor vehicle liability insurance policy and can pay for reasonable medical and funeral expenses incurred as a result of a motor vehicle accident.

According to the bulletin, the first $2,000 in medical and funeral expenses incurred as a result of a motor vehicle accident must be submitted to the automobile insurer to be paid under PIP. The remaining amount in PIP coverage is coordinated between the claimant’s group health and motor vehicle insurance plans. Once the first $2,000 has been exhausted, any medical-related claims must be submitted to the health insurance carrier for coverage determination, if health coverage exists. The health insurance carrier cannot deny payment for medical expenses on the basis of PIP coverage availability. In addition, if there are medical payment benefits within the motor vehicle policy, the medical payment benefits are always secondary to and in excess of the benefits of the health coverage and the PIP benefit (up to the limits of the medical payment benefits).

The bulletin also describes certain COB situations, depending on the exact type of coverage available to the claimant. Those include where the claimant doesn’t have health coverage or medical benefit payment coverage, where the claimant has health coverage but not medical payment coverage, where the claimant has medical benefit payment coverage but does not have health coverage, and where the claimant has health coverage and medical payment coverage. Importantly, fully insured health benefit plans may not include a COB provision in their contracts, making their coverage secondary to other coverage for health care services, including medical payment coverage. Automobile insurers may continue to determine whether PIP or medical payment coverage pays first (based on the reason for the health insurance carrier’s denial or based upon an exclusion (such as felonious conduct) or under the terms of the automobile insurance policy.

The new bulletin (and the associated MA COB rules) don’t apply to certain types of plans, including hospital/fixed indemnity coverage, accident-only coverage, specified disease/illness coverage, Medicare supplemental policies, school accident-type coverage (such as athletic injury coverage), long-term care and other non-medical policies, and state plans under Medicaid. In addition, self-insured plans are generally exempt from state laws such as the MA COB rules (although a self-insured plan administrator could adopt the rules to help with ease of administration).

Although the bulletin contains no new employer obligations, employers should be aware of the new COB rules with respect to motor vehicle accident coverage and fully insured group health plans in MA (particularly if employees have questions regarding coverage after a motor vehicle accident that involves medical care). The bulletin and COB rules are effective Jan. 1, 2018.

Bulletin 2017-06 »

New Guidance on EMAC Adjustments for 2018-2019

November 14, 2017

On Oct. 25, 2017, the Massachusetts Department of Unemployment Assistance (DUA) posted updates relating to employer health care contributions and experience rate schedule adjustments for 2018 – 2019.

As background, Massachusetts recently increased the Employer Medical Assistance Contribution (EMAC) for 2018 and 2019 and implemented an EMAC supplement contribution for employees who are not eligible for the employer group health plan and have coverage through the state (generally speaking, either the MassHealth or Massachusetts ConnectorCare Program).

According to the updates, employees in the premium assistance program will not be considered employees on MassHealth and, therefore, will not cause the employer to pay the EMAC supplement for those employees. That said, because the EMAC supplement is based on wages paid and not hours worked, if the EMAC supplement applies, it’s payable regardless of whether employees are full or part-time. The updates also clarify that employers will have time to review and discuss the DUA’s calculation of the employer’s EMAC supplement prior to payment. It’s not clear whether this means the employer will have to calculate the EMAC supplement prior to DUA’s calculation. The DUA has indicated that nonprofit organizations and governmental employers are subject to the EMAC.

Importantly, draft legislation suggests that the changes to the EMAC and addition of the EMAC supplement may necessitate a revival of the employer Health Insurance Responsibility Disclosure (HIRD) forms. While that legislation is not formal, it’s important to note as the EMAC adjustments develop.

Employers should work with tax counsel and payroll providers to make adjustments relating to the change in EMAC and potential supplemental contribution. The update also states that regulations on the issue are forthcoming, so employers should be aware those are coming.

MA DUA Updates »

New Law Increases EMAC Contribution In Connection with Employer Contributions to Health Care

August 22, 2017

On Aug. 1, 2017, Gov. Baker signed into law HB 3822, creating Chapter 63 of the Acts of 2017. In early 2017, Gov. Baker, in his budget proposal for 2018, suggested a type of employer mandate for Massachusetts employers, whereby employers would have to make a qualified offer of coverage to all employees working 35 hour per week and maintain an uptake (participation) rate of 80 percent or more. The penalty for failing to make the offer or maintain the uptake rate would have been around $2,000 per employee. The Governor’s proposed employer requirement and penalty were designed to raise money to satisfy a budget shortfall. However, after hearing much feedback from employers regarding the proposal’s financial and administrative burdens, Gov. Baker and his administration withdrew the proposal. Rather than impose a new type of state employer mandate, the administration instead proposed an increase in the employer medical assistance contribution (EMAC) — a tax that is already imposed on most employers. Although the EMAC increase still represents a financial burden on employers, it avoids the administrative difficulties associated with the proposed state employer mandate and is limited in its application (the increase phases out after two years). Chapter 63 formalizes the proposed EMAC increase.

The EMAC applies generally to all employers who are subject to unemployment contributions. Employers pay a percent of employee wages (up to the first $15,000 in wages), and that percentage varies based on the number of years the company has been in business and subject to the EMAC. The maximum contribution per employee is subject to a cap, which is currently $51 per employee per year. Chapter 63 increases that maximum to $77 per employee per year.

In addition, under Chapter 63, a second assessment will be applied to employers whose non-disabled employees receive their health insurance coverage through the division of medical assistance (which includes Medicaid and Massachusetts Health) or subsidized insurance through the Commonwealth Health Insurance Connector. This second assessment is equal to 5 percent of the wages paid by the employer to the employee receiving the assistance, with ‘wages’ defined as the unemployment insurance taxable wage base. The assessment is also capped at $750 per employee. The second assessment could potentially be applied to the same employee as the first assessment — the two are not mutually exclusive.

The new law takes effect Aug. 1, 2018. Massachusetts employers should work with outside counsel, their payroll partner, and their CPA to make the necessary adjustments relating to the increase in EMAC contributions and potential contributions relating to the second assessment. We will continue to monitor the situation and report on additional developments or guidance released on this new law.

Chapter 63 »

Coverage for Prescription Eye Drops

February 22, 2017

On Jan. 13, 2017, Gov. Baker signed H 4195 into law, creating Chapter 454. The new law relates to coverage for prescription eye drops. Under the new law, plans that provide coverage for prescription eye drops must provide refills in accordance with Medicare Part D guidance for early refills of topical ophthalmic products in certain situations. The refill requirement applies if the refills requested by the individual do not exceed the number of additional quantities indicated on the original prescription and if the associated health care practitioner indicates that additional quantities of prescription eye drops are necessary on the original prescription.

The new law applies for policies, contracts, agreements, plans or certificates of insurance issued, delivered or renewed in Massachusetts on or after April 1, 2017. The law contains no new employer obligations, but those employers with fully insured plans in Massachusetts should be aware of the new prescription eye drop requirements.

Chapter 454 »

MA State Updates - 2015 Jan 20 No.01

October 20, 2015

Due to the signing of the PACE Act, the formal guidance regarding use of the transitional renewal of insured health plans for employers with 51-100 employees issued by the Massachusetts Office of Consumer Affairs & Business Regulation, Division of Insurance, in Bulletin 2015-06 (discussed in the Aug. 25, 2015 edition of Compliance Corner), was rescinded effective Oct. 9, 2015.

As background, PPACA included a provision to change the definition of small employer from 1-50 to 1-100 employees effective Jan. 1, 2016. On Oct. 7, 2015, the President signed the PACE Act, repealing the mandated small-group expansion from groups of up to 50 employees to groups of up to 100 employees. Thus, unless a state has expanded its definition of small employer, PPACA’s insurance mandates would not apply to employers in the 51-100 group in that state.

Bulletin 2015-06: Rescinded »

MA State Updates - 2015 Jan 25 No.01

August 25, 2015

On Aug. 13, 2015, the Massachusetts Division of Insurance published Bulletin 2015-06, which relates to transitional renewal of insured health plans for employers with 51-100 employees. The bulletin is directed toward insurers, and states that insurers in the large group market are permitted to renew existing 2015 health plans for employers with 51-100 employees so long as certain conditions are met. As background, on Jan. 1, 2016, under PPCA, the definition of ‘small group’ changes from 1-50 employees to 1-100 employees, meaning small group plans in the 51-100 group will become subject to many of PPACA’s requirements. However, on March 5, 2014, the CCIIO published a bulletin announcing transition relief for non-PPACA compliant plans with years beginning on or before Oct. 1, 2016. The CCIIO transitional policy allows small employers with between 51-100 employees to renew their existing policies and remain in the large group market without violating PPACA.

According to the bulletin, so long as the 51-100 group policy is renewed on or before Oct. 1, 2016, carriers may continue to rate these transitional policies as large group plans under Massachusetts state law and under PPACA for one year. Importantly, the bulletin states that carriers are not required to allow transitional renewals—employers should consult with carriers to see if it is an option. The bulletin also states that transitional renewal is allowed only if certain conditions are met. While some conditions apply to the carrier, some relate to the employer. Specifically, an employer is eligible for the 2016 transitional renewal if on Oct. 1, 2015, the employer has between 51 and 100 employees and is covered by an insured health plan in Massachusetts. In addition, the employer must have more than 50 employees on the policy’s renewal date.

Although the bulletin is directed toward insurers, Massachusetts employers in the 51-100 group should take notice of the bulletin and work with their carriers to determine if transitional renewal is an appropriate course of action.

Bulletin 2015-06 »

MA State Updates - 2015 Jan 11 No.01

August 11, 2015

On July 31, 2015, the Massachusetts Division of Insurance published Bulletin 2015-05. The bulletin is directed toward insurers and relates to access to services to treat substance use disorders. Massachusetts law requires fully insured plans issued, delivered or renewed within Massachusetts to provide coverage for medically necessary acute treatment and clinical stabilization services for at least 14 consecutive days. According to the bulletin, insured plans must cover such services without preauthorization requirements, so long as the services are delivered by a provider that is properly licensed or certified.

For purposes of the coverage requirements, ‘acute treatment services’ means 24-hour medically supervised addiction treatment for adults or adolescents provided in a medically managed or medically monitored inpatient facility. ‘Clinical stabilization services’ means 24-hour clinically managed post detoxification treatment for adults or adolescents, which may include intensive education and counseling regarding the nature of addiction and its consequences, relapse prevention, outreach to families and significant others and after-care planning for individuals beginning to engage in recovery from addiction.

The bulletin also includes a list of services for which carriers may not require preauthorization. Those services include: early intervention services, outpatient services (including medically assisted therapies), early intervention for substance use disorder treatment, intensive outpatient and partial hospitalization services and residential and medically managed intensive inpatient services. The bulletin contains additional explanations for each of those covered services.

The bulletin contains no new compliance obligations for employers, but employers will want to be aware of the bulletin should they (or employees) have questions relating to substance use disorder coverage.

Bulletin 2015-05 »

MA State Updates - 2015 Jan 14 No.01

July 14, 2015

On June 19, 2015, Attorney General (AG) Healey published final regulations relating to the recently enacted Earned Sick Time (EST) law. The AG recently announced a safe harbor on the law and published draft regulations (see the June 2, 2015, and May 5, 2015 editions of Compliance Corner, respectively). The final regulations provide additional clarifications and changes from the draft regulations.

Regarding employer size, the final regulations clarify that employer size should be calculated based on the prior January 1 – December 31 calendar year for employers that use multiple start dates for the benefit year (such as employee anniversary dates). All employees—including full-time, part-time and seasonal—are included in the count, as are those working or living outside Massachusetts. Importantly, employees furnished through and paid by a temporary staffing agency are counted as employees for both the agency and the employer.

Regarding covered employees, regardless of the employer’s location, full-time, part-time and seasonal employees whose primary place of work is in Massachusetts are eligible. In addition, an employee is not required to spend 50 percent or more of working time in Massachusetts in order for it to be the primary place of work.

Regarding the difference between calendar and benefit years, the final regulations clarify that the employer may use any consecutive 12-month period as the calendar year, and that “calendar year” and “benefit year” may be used interchangeably.

Regarding EST leave accrual, the regulations state that employees may accrue EST based on all hours the employee works, even if those hours are worked in another state. That said, hours paid when not working (e.g., PTO, vacation or sick time) do not count toward the accrual. Once an employee has accrued 40 hours during a benefit year, the employer may delay further accrual until the employee actually uses some of those 40 hours. Employers may frontload the full 40 hours of EST leave at the beginning of the benefit year, in which case the employer would not be required to allow carryover of unused time into the subsequent benefit year.

Regarding EST leave use, employees hired on or before April 2, 2015, may use EST as it accrues, whereas those hired after that date may use accrued sick time once they reach 90 days of employment (regardless of the number of days actually worked during that initial 90 days). The smallest increment of sick time an employee may use is one hour. Special rules apply for employers that want to pay employees for unused EST at the end of the benefit year or upon transfer within the company.

Regarding the EST’s interaction with other leave laws, the final regulations state that time off provided under the EST law may run concurrently with FMLA and other Massachusetts state leave (rather than in addition to FMLA leave, as the draft regulations provided). Employers may require employees to use EST when taking other statutorily authorized leave that would otherwise be unpaid.

Regarding notice requirements, employers must post a model notice in a conspicuous location for all employees to see, and must also either provide a copy (either in paper or electronic form) to all eligible employees or include the EST policy in an employee manual or handbook. As for employee notice requirements, employers may require employees to provide up to seven days advance notice for foreseeable sick leave, although only reasonable notice may be required for unforeseeable leave. The regulations clarify that employers may require notice of the expected duration and may require daily updates (if the expected duration is unknown).

Overall, employers should work with outside counsel in implementing leave policies that comply with the EST law, particularly since the EST law implicates other non-benefits employment issues, such as labor and employment law.

MA EST Law Final Regulations »

MA State Updates - 2015 Jan 02 No.01

June 02, 2015

Massachusetts Attorney General (AG) Healey recently published a safe harbor, titled “Transition Year: Safe Harbor for Employers with Existing Paid Time Off Policies,” which relates to the recently enacted Earned Sick Time (EST) law. The AG recently filed draft regulations on the EST law (see our article in the May 5, 2015, edition of Compliance Corner), which further detail the general requirement for employers to allow employees to earn and use up to 40 hours of paid sick leave per year. However, it’s not clear whether those draft regulations will be finalized prior to the EST law’s July 1, 2015, effective date. According to the safe harbor, for the period of July 1 to Dec. 31, 2015, any employer that has a paid time off (PTO) plan in place on May 1, 2015, that provides at least 30 hours of PTO during the 2015 calendar year will be considered as in compliance with the EST law with respect to those employees covered by the PTO plan (and to any other employees to whom the PTO plan is extended). Importantly, to remain in compliance, any PTO, including sick time, used by an employee during the safe harbor period must be job-protected leave subject to the EST law’s non-retaliation and non-interference provisions. The safe harbor extends only to Dec. 31, 2015, therefore employers relying on the safe harbor must adjust their PTO policies to comply with the EST law by Jan. 1, 2016.

The safe harbor comes as welcome news to many Massachusetts employers, particularly those with PTO plans currently in place that provide at least 30 hours of PTO per year. Employers should work closely with outside counsel in adjusting their PTO plans to comply with the EST law, particularly since the EST law implicates other non-benefit issues, such as labor and employment law.

Transition Year: Safe Harbor for Employers with Existing Paid Time Off Policies

MA State Updates - 2015 Jan 05 No.01

May 05, 2015

On April 24, 2015, Massachusetts Attorney General Healey filed draft regulations relating to the state’s new Earned Sick Time (EST) leave law which takes effect July 1, 2015. As background, in November 2014 Massachusetts voters approved the EST law (covered in the Dec. 2, 2014, edition of Compliance Corner), which requires employers (those with 11 or more employees) to allow employees to earn and use up to 40 hours of paid sick leave each calendar year. The same requirement applies for small employers, except that the leave can be unpaid. The draft regulations provide additional guidance on the EST law, as well as an opportunity for stakeholders to provide comments and feedback until June 10, 2015 to the Attorney General before regulations are finalized.

The draft regulations address several different specifics under the EST law such as accrual rates (including how to treat breaks in service), carry-over of unused leave and the types of leave that qualify for EST law protection. Specifically, the regulations state that EST can be used for routine or emergency medical visits and travel time if the employee (or a family member) is sick or to address issues of domestic violence. Employees begin accruing sick time on the date of hire. Employees are required to make a good faith effort to notify employers of the intention or need to use sick time. In addition, the regulations allow seasonal workers to carry unused time from season to season.

The draft regulations also contain important definitions related to the EST law. For example, the regulations state that an ‘employer’ subject to the law is one that maintained 11 or more employees on the payroll during 20 or more weeks (whether consecutive or not) over either the current or preceding calendar year or on the payroll during 16 consecutive weeks over the current or preceding calendar year. For purposes of that count, an employer must include all employees regardless of whether an employee works in or outside of Massachusetts.

Importantly, employers that provide sick or other paid leave that is more generous than required by the EST law will be considered to have met their EST law obligations. The draft regulations provide examples of leave policies that would be considered more generous.

Draft Regulations »

Attorney General Press Release »

MA State Updates - 2015 Jan 28 No.01

January 28, 2015

On Jan. 7, 2015, Gov. Patrick signed into law S. 865, creating Chapter 484. The new law relates to parental leave for both female and male employees, and will replace the current Massachusetts Maternity Leave Act.

The law applies to employers with six or more employees. Under the law, employees who have been employed for at least three consecutive months as full-time employees are entitled to eight weeks of unpaid, job-protected parental leave for the purpose of giving birth, for the placement of a child under the age of 18 (or under the age of 23 if the child is mentally or physically disabled), or for the adoption of a child. To be entitled to the protected leave, employees generally must give at least two weeks’ notice to the employer of the anticipated date of departure and the employee’s intention to return to work. However, the employee’s notice can be less than two weeks before the leave date, if the delay is for reasons beyond the employee’s control.

Where leave has been properly requested by the employee, the employer must restore the employee to his or her previous (or similar) position, with the same status, pay, length of service credit and seniority as of the date of the leave. Employers need not pay for the cost of benefits (including medical coverage) during the leave, unless the employer continues payment for the cost of benefits to all employees who are on a leave of absence. In addition, an employee on parental leave for the adoption of a child is entitled to the same benefits offered by the employer to an employee on parental leave for the birth of a child.

Importantly, if the employer agrees to provide an employee with more than eight weeks of parental leave, the employer may not deny reinstatement rights upon return unless the employer provides written notice that taking more than eight weeks of leave will result in the denial of reinstatement. The written notice must be provided prior to the commencement of the parental leave and prior to any subsequent extension of that leave. If the employer does not provide notice but agrees to extend the leave beyond eight weeks, the entire period of leave will be protected.

According to the new law, an employer is not required to restore an employee on parental leave to their previous position if the employer is going through lay-offs due to economic conditions or other changes in operating conditions affecting employment during the leave. However, an employee on parental leave must be given preferential consideration for another position to which the employee may be entitled as of the date of the leave.

Finally, employers are required to post, in a conspicuous place on the employer’s premises, a notice describing employees’ rights under the new law and the employer’s policies.

The new law is effective April 7, 2015. Massachusetts employers should work closely with outside counsel in ensuring that their leave policies are consistent with the new law, as well as with existing federal laws, (e.g., FMLA, ADA, etc.).

Chapter 484  »


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