Time off - Massachusetts

Paid family leave insurance

The MA family and medical leave insurance provisions were part of a bill was referred to as the Grand Bargain, enacted in 2018. The payroll tax collection was originally 0.63 percent, but was increased to 0.75 percent, and was originally set to begin 7/1/19, but it was delayed until 10/1/19; employees may take paid leave 1/1/21.

Covered employers

Employers with 25 or more employees need to contribute to the payroll tax. Those with fewer than 25 employees do not need to contribute, but employees do.

Employee eligibility

The only requirement is to be covered by the state unemployment provisions.

Leave entitlement

• Up to 12 weeks of family leave per benefit year (care for a family member, bond with a new child, for a qualifying exigency)
• Up to 20 weeks of medical leave per year (for the employee’s own serious health condition)
• Up to 26 weeks for military caregiver leave.

Employees may not take more than 26 weeks, in the aggregate, of family and medical leave in the same year. There is a seven-day waiting period for payment of benefits, during which employees may take accrued sick or vacation pay or other paid leave under company policy.

Qualifying reasons

• To bond with a newborn, adopted, or foster child during the first 12 months after birth or placement.
• For the employee’s own serious health condition.
• To care for a family member with a serious health condition.
• Because of any qualifying exigency arising out of the fact that a family member is on active military duty or has been notified of an impending call or order to active military duty.
• To care for a family member who is a covered servicemember.

Maintenance of health benefits

During family or medical leave, the employer must continue to provide for and contribute to the employee’s employment-related health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.

Job restoration

Employees are entitled to return to their position or an equivalent one.

If an employee meets the eligibility criteria under both federal FMLA and MA paid family leave, and takes leave for reasons that qualifies under both, the leave may run concurrently under both laws.

Notice

Employees file a claim for benefits, including a certification.

In addition to displaying a poster, employers must give new employees information about the provisions, and obtain a written receipt acknowledgment. The government will notify the employer after a claim has been filed.

Attend criminal proceeding

Under Massachusetts law, employers must not discharge or penalize, or threaten to discharge or penalize employees who are victims or witnesses and who have received a subpoena to testify, because the employees must attend a criminal proceeding as a witness. This is true, even if employees notify their employers of the subpoena, prior to attending the proceeding. Employers who discharge or discipline or continue to threaten to discharge or discipline a victim or witness may be subject to sanctions.

Blood donations by public employees

Under Massachusetts law, any employee of the commonwealth, of any county, and of any city or town which accepts the provisions of this section, must be allowed a leave of absence without loss of pay of not more than eight hours in each calendar year for the purpose of donating platelets, plasma white cells or whole blood to any cancer research center.

Children and elderly relatives

An eligible employee (under FMLA) is entitled to a total of 24 hours of leave during any 12-month period, in addition to leave available under the federal act, to:

1. participate in school activities directly related to the educational advancement of a son or daughter, such as parent-teacher conferences or interviewing for a new school;
2. accompany a son or daughter to routine medical or dental appointments, such as check-ups or vaccinations; and
3. accompany an elderly relative to routine medical or dental appointments or appointments for other professional services related to the elder’s care, such as interviewing at nursing or group homes.

“School” includes a public or private elementary or secondary school; a Head Start program assisted under the Head Start Act; and a licensed children’s day care facility.

“Elderly relative” includes an individual of at least 60 years of age who is related by blood or marriage to the employee, including a parent.

If the necessity for leave is foreseeable, the employee shall provide not less than seven days’ notice before the date the leave is to begin. If the necessity for leave is not foreseeable, the employee shall provide such notice as is practicable.

Domestic violence leave

Employers with 50 or more employees must allow an employee to take up to 15 days of leave in a 12-month period if the employee or an employee’s covered family member is a victim of abusive behavior.

Family members include spouses, those in substantive dating or engagement relationships and live together, those having a child in common, parents, stepparents, children, stepchildren, siblings, grandparents, grandchildren, or persons in guardianship relationships.

Except in cases of imminent danger, employees are to provide advance notice of the need for leave, according to company policy.

If an unscheduled leave occurs, employers may not take any negative action against the employee if the employee provides documentation supporting the need for leave within 30 days of the absence.

Employers may require employees to provide documentation supporting that the employee or family member has been a victim of abusive behavior. Such documentation could include, for example, a protective order, a court document, a police report, medical documentation, or a sworn statement.

Leave may be paid or unpaid, at the employer’s discretion.

Employees are to exhaust all available annual or vacation leave, personal leave, and sick leave before requesting domestic violence leave, unless the employer waives this requirement. Employers must notify employees of the rights and responsibilities of the law’s provisions.

According to the state supreme court, the domestic violent leave law applies to applicants. After an applicant accepted a job offer, the offer was rescinded soon after the applicant disclosed that she was a victim of abuse and that her abuser violated a protective order, which she was taking efforts to enforce. The applicant sued, and the court ruled in favor of the applicant. (Osborne Trussell v. The Children’s Hospital Corporation)

Jury duty

Massachusetts law requires employers to pay employees on jury duty their regular wages for the first three days of jury duty. This includes part-time, temporary, and casual employees.

Organ donations by public employees

An employee of the Commonwealth of Massachusetts or of a county, a city, or a town that accepts this section, may take a leave of absence of not more than 30 days in a calendar year to serve as an organ donor, without loss of or reduction in pay, without loss of leave to which he is otherwise entitled and without loss of credit for time or service.

If the necessity for leave under this section is foreseeable, the employee shall provide the employer with not less than 7 days’ notice before the leave is to begin. If the necessity for leave is not foreseeable, the employee shall provide such notice as is practicable.

An employer may require that a request for leave under this section be supported by a certification issued at such time and in such manner as the attorney general may by regulation require.

Paid time off (PTO)

Massachusetts law does not require vacation pay. However, if an employer chooses to provide paid time off benefits, it must follow the terms and conditions established in its policy.

When an employee separates employment for any reason, an employer must pay out all accrued or earned vacation upon separation.

Participation in Veterans or Memorial Day exercise

Any employee who is a veteran or is a member of a department of war veterans and who desires to participate in a Veterans Day or Memorial Day exercise, parade or service shall be granted a leave of absence, with or without pay at the discretion of an employer, of sufficient time to participate in such services in their community of residence.

This leave shall not apply to employees whose services are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.

Pregnancy Accommodations

Employers with six or more employees must provide reasonable accommodations to employees for pregnancy and related conditions. A condition related to pregnancy can be during or after pregnancy. Examples include, but are not limited to, morning sickness, lactation, or the need to express breast milk. If a pregnant employee, for example, needs to start her workday later than her usual start time due to morning sickness, the employee may be covered by the Act.

Accommodations may include:

• More frequent or longer breaks,
• Time off to recover from childbirth,
• Obtaining or modifying equipment or seating,
• Temporary transfer to a less strenuous or hazardous position,
• Job restructuring,
• Light duty,
• Help with manual labor, and
• Modified work schedules.

Employers need not provide an accommodation that would require significant difficulty or expense, but they would need to be able to prove this. Factors to consider include the nature and cost of the needed accommodation, your company’s financial resources, the overall size of the business, and the effect on expenses and resources of the accommodation on the company.

When an employee requests an accommodation, employers are to engage in an interactive process to identify effective reasonable accommodations. Employers may request reasonable documentation about the need for an accommodation, except for breaks, seating, and limits of lifting over 20 pounds.

You may generally require documentation about the need for accommodation from a health care professional that explains what accommodation the employee needs and, from there, you and the employee should discuss how the accommodation(s) relate to the essential functions of the employee’s job. You may not, however, require documentation for an employee’s need for the following:

• More frequent restroom, food, or water breaks;
• Seating;
• Limits on lifting more than 20 pounds; and
• Private, non-bathroom space for expressing breast milk.

Notice of the anti-discrimination rights must be in a handbook or given to new employees upon hire, and to employees who request an accommodation.

Sick leave

Employees in Massachusetts are entitled to earn sick leave. The law applies to all private sector employers in the state. If you have 11 or more employees, they are entitled to paid sick leave. If you have 10 or fewer employees, they are entitled to unpaid sick leave.

Employees earn one hour of sick leave for every 30 hours worked. They may earn and take up to 40 hours in a calendar year. They begin accruing sick leave upon the date of hire. They may use the earned sick leave 90 days after hire. After 90 days, they may use the sick leave as it accrues.

Earned sick leave must be used in hourly increments, or the smallest increment your payroll system uses to account for absences or use of other leave, whichever is smaller.

Employees may use earned sick leave for the following reasons:

• To care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
• To care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
• To attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; or
• To address the psychological, physical, or legal effects of domestic violence.

Employees may carry over any unused sick leave into the following calendar year, but they are still restricted to using only 40 hours of leave in a year.

When the need for sick leave is foreseeable, the employee must make a good faith effort to provide advance notice.

You may require that employees provide a certification in support of the need for sick leave, but only if the leave lasts for more than 24 consecutive work hours.

You must post a notice of these provisions where eligible employees work.

Small necessities leave

Employees are entitled to a total of 24 hours of unpaid leave during any 12-month period, in addition to leave available under the Family and Medical Leave Act of 1993, for the following purposes:

• To participate in school activities directly related to the educational advancement of a son or daughter of the employee, such as parent-teacher conferences or interviewing for a new school;
• To accompany the son or daughter of the employee to routine medical or dental appointments, such as check-ups or vaccinations; and
• To accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder’s care, such as interviewing at nursing or group homes.

Voting

Massachusetts law allows employees in manufacturing, mechanical, or mercantile the first two hours the polls are open off to vote. Employees must request time off in advance.