Chamber News

Needham / Newton
February 10, 2021 Likes Comments

Paid leave law raises piggybacking issues

By Colin A. Young, State House News

Human resources professionals and employment law experts have been busy making sense of the state's new paid family and medical leave program for companies and workers since some of the new benefits kicked in last month, explaining how the state program interacts with existing benefits and what employers need to keep in mind as workers become eligible for leave.

Saleha Walsh, vice president of business consulting firm Insource Services, and attorney Elizabeth Adler, partner at Beacon Law Group, walked employers through the law that created the paid family and medical leave program, what businesses need to do to be in compliance with the law, and some of the questions they are often asked by employers during an event hosted by the Newton-Needham Regional Chamber.

"We've been getting so many questions about this program," Walsh said.

The paid family and medical leave law, part of the June 2018 "grand bargain" legislation signed by Gov. Charlie Baker, calls for up to 12 weeks of job-protected paid leave to care for a seriously ill or injured family member, to care for a new child, or to meet family needs arising from a family member's active-duty military service. It also authorizes up to 20 weeks of job-protected paid leave to recover from a worker's own serious illness or injury, or to care for a seriously ill or injured service member.

Benefits became available Jan. 1 for workers seeking time off to bond with a new child, take care of a sick or injured service member, or to tend to a serious personal health condition. On July 1, benefits will be made available for workers to care for a family member with a serious health condition.

One of the most common questions, Walsh said, has to do with workers who welcomed a baby into their family in 2020 and might have taken leave last year for the birth or adoption and to bond with the new child. As long as the baby was born or adopted within the last 12 months, those workers are eligible to take the full 12 weeks of leave allowed under the new state program, she and Adler said.

"Whatever happened last year is irrelevant. So you could have a worker who already took X number of weeks of leave in 2020 or even in the very end of 2020 leading into 2021 and that's not going to count towards the allotments," Adler said Wednesday. "So people are going to be able to sort of piggyback."

The issue of "piggybacking" came up again when Walsh and Adler discussed how the state leave program interacts with short-term disability, paid time off or other existing benefits available to employees.

"Generally, an employee doesn't piggyback -- you know, tack one form on with the next," Adler said.

She explained that, generally, if an employee takes any accrued paid leave offered by the employer -- things like sick leave, vacation leave, personal leave and paid time off -- they cannot also receive state PFML benefits at the same time. But the weeks of leave will count against the state PFML program allotment.

"So you might ask yourself why would any employee choose to use vacation time if they could get the state's benefits instead? Well, if you're a highly-paid worker, it is much more attractive to get paid your full pay by using your vacation days from your employer than taking state benefits that might be much smaller than what you would otherwise get," Adler said. "But for a lower-paid worker, most likely that worker would say, 'Hey, I want to save my vacation time and collect from the state.' But the bottom line is they can't do both at the same time."

Adler and Walsh also advised employers to make sure they have made information about the state's new benefits program available to all workers and that they have updated their human resources handbooks and policies. They also flagged the PFML law's rebuttable presumption of employer retaliation when it comes to any adverse actions taken against the employee within six months of their return from paid leave.

"So if you have an employee that you're having performance issues for and they're going out on leave, you would be well-served to document that before they go out on leave so that if you continue to have those issues when they return you've created a paper trail of some of those issues so that you're better positioned if you continue to have issues," Walsh said.


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