As we reported last week, on May 8, 2020, the Department of Paid Family and Medical Leave (DFML) issued proposed amendments to the Paid Family and Medical Leave (PFML) regulations and announced a public hearing and formal comment period. On May 15, the DFML proposed additional amendments to the PFML regulations, and announced that it will hold a single virtual public hearing. The new amendments primarily clarify provisions of the regulations relating to the use of intermittent leave and also carve out an exception to the presumption of retaliation provision. The virtual public hearing will be held on June 11, 2020 at 10:00 a.m., and the DFML is accepting formal comments through the DFML website on the proposed regulations until June 12 at 5:00 p.m. The DFML noted that if the Commonwealth's state of emergency is rescinded in whole or in part to allow in-person public hearings on June 11, the DFML will hold two in-person hearings – likely one in Springfield and one in Boston.
Clarifications to Use of Intermittent Leave
In the additional amendments proposed on May 15, the DFML added a provision allowing covered individuals to take intermittent leave in 15-minute intervals. This is a departure from the current regulations, which would allow an employer to specify the minimum interval for intermittent leave, provided the minimum interval does not exceed four hours. The DFML also clarified that for covered individuals to receive PFML benefits for intermittent leave, they will have to verify the hours of leave taken each week with the DFML.
Exception for "Subjective, De Minimis" Changes to Terms and Conditions of Employment
The DFML added a proposed amendment that provides an exception to the presumption of retaliation provision. Under the existing regulations, "any negative change" to an employee's seniority, status, benefits, pay, or other terms and conditions of employment would be presumed to be based on a covered individual's use of leave. The proposed amendment provides that "a negative change shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee's work." This is a welcome addition to the regulations for employers, as under the existing regulations, any potentially negative change, even neutral changes that may subjectively be considered negative by the employee, could be considered retaliatory. As before, a presumption of retaliation under the regulations can only be rebutted by clear and convincing evidence that the employer's action was not retaliatory and that the employer had sufficient independent justification for the action.
A summary of the DFML's initial round of proposed amendments from May 8, 2020 can be found here.
Originally published May 20, 2020
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