Proposed Regulations for Family and Medical Leave

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 »