Seyfarth Synopsis: The Department of Family and Medical Leave (Department) has opened applications for Paid Family Medical Leave (PFML) benefits related to family bonding leave for children born, adopted, or placed for foster care during 2020. The Department also issued two sets of Emergency Regulations on December 21, 2020. The first set of Emergency Regulations found here allow employees of Acute Care Hospitals to delay the use of bonding leave for qualifying events in 2020 during the COVID-19 pandemic, provided that the extension does not extend beyond December 31, 2021. The second set of Emergency Regulations found here provide minor updates to the definitions section for a Covered Individual, an Employee and an Employer.
Bonding Leave Applications for 2020 Qualifying Events
Covered individuals may apply for up to 12 weeks of family bonding leave for the birth, placement or adoption of a child in 2020 here. The leave must be taken with 12 months of the qualifying event. The application for other types of leave are expected to open on January 1, 2021.
Emergency Regulations Regarding Family Bonding Leave for 2020 Qualifying Events
In an effort to address the need to maximize staffing capacity at acute care hospitals1 during the COVID-19 pandemic, the Department has issued Emergency Regulations that allow an employee of an acute care hospital to request that the period for taking PFML bonding leave for a birth, adoption or foster care placement that occurred during calendar year 2020, be extended beyond the normal 12-month post-birth/placement period as long as the employee completes the leave by December 31, 2021. The regulations state that the employer “may grant” the employee's request to extend the 12-month period, but they do not require the employer to grant the request. The extension does not affect the total amount of leave available to the employee.
Employers that are acute care hospitals may initiate discussions with employees eligible for an extension to determine if the employee intends to request the allowable extension. An employer's decision to deny an employee's request to extend the bonding leave period does not constitute retaliation under the PFML Law.
The Emergency Regulations apply to all acute care hospitals, regardless of whether the employer participates in the public plan or has an approved private plan. The Emergency Regulations do not impact medical leave or other types of family leave, including family bonding leave for a qualifying event that occurs during 2021.
In the interest of public safety, the Department stated that it may enact additional provisions to assist other classes of covered individuals, covered business entities and employers in moderating the effect of accommodating accrued family bonding leave for 2020 births, adoptions and foster care placements.
Employers or covered business entities that are not acute care hospitals may submit a written request to the Director of the Department to extend the period in which an employee may schedule family bonding leave for 2020 qualifying events. The Director will consider the impact on public health and safety and the public interest when granting or denying such requests.
Emergency Regulations Regarding Definitions
The Department also issued another set of Emergency Regulations to reflect statutory changes to definitional terms recently enacted by the Legislature. The notable changes update the definitions for Covered Individuals, including Former Employees, Employees, and Employers to address personal care attendants and family child care providers as defined under Massachusetts law.
The Department updated the definitions of Former Employee and Employee to include personal care attendants defined as a person, including a personal aide, who has been selected by a consumer or the consumer's surrogate to provide personal care services to persons with disabilities or seniors under the MassHealth personal care attendant program or any successor program or under any program operated by an entity under contract in whole or in part with MassHealth. The definition of Employer was updated to include the PCA Qualify Home Care Council as the employer of personal care attendants.
The definition of Former Employee also now includes family child care providers defined as a person who provides family child care services on behalf of low-income and other at-risk children and receives payment from the Commonwealth for such services under a rate structure for voucher and contracted payments. The definition of Employer was updated to include the Department of Early Education and Care as the employer of family child care providers.
The definition of Employer was revised to clarify that for a municipality, political subdivision or its instrumentalities to be subject to the PFML Law, it must adopt it by a majority vote of its authorized local legislative body or governing body or as otherwise specified in Section 10 the PFML Law.
We will continue to provide updates as the Department releases new information. Please reach out to any of the authors or your Seyfarth attorney with any questions.
1 Acute Care Hospitals are defined as hospital licensed under M.G.L. c. 111, § 51 and the teaching hospital of the University of Massachusetts Medical School.
Originally Published by Seyfarth Shaw, January 2021
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