SENATE DOCKET, NO. 1768        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1048

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Karen E. Spilka

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing a family and medical leave insurance program.

_______________

PETITION OF:

SENATE DOCKET, NO. 1768        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1048

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2477 OF 2015-2016.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninetieth General Court
(2017-2018)

_______________

An Act establishing a family and medical leave insurance program.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 150 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the figure “151”, in line 41, the following words:- or of chapter 175M.

SECTION 2. Subsection (c) of section 46 of chapter 151A of the General Laws is hereby              amended by striking out clause (3), inserted by section 7 of chapter 70 of the acts of 2016, and              inserting in place thereof the following clause:

(3) to the heads of the departments of career services, transitional assistance, revenue, veterans’ services, family and medical leave and the office of Medicaid and industrial accidents, information necessary in the performance of their official duties.

SECTION 3. The General Laws are hereby amended by inserting after chapter 175L the following chapter:

CHAPTER 175M.

FAMILY AND MEDICAL LEAVE

Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Average weekly wage”, as provided in subsection (w) of section 1 of chapter 151A and shall be calculated using the base period earnings as defined in subsection (a) of said section 1of said chapter 151A.

“Benefit year”, benefit year as defined in subsection (c) of section 1 of chapter 151A.

“Child”, a biological, adopted or foster child, stepchild or legal ward, a child to whom the employee stands in loco parentis, or a person to whom the employee stood in loco parentis when the person was a minor child.

“Contributions”, payments made by an employer or employee to the Family and Employment Security Trust Fund established in section 8.

“Department”, the department of family and medical leave established in section 3.

“Director”, the director of the department of family and medical leave.

“Employee”, as provided in subsection (h) section 1 of chapter 151A; provided, however, that an individual employed by an employing unit not subject to chapter 151A but employed to an employing unit that has opted into coverage under this chapter shall be deemed an employee; and provided further that family child care providers, as defined in subsection (a) of section 17 of chapter 15D, shall be deemed employees for the purposes of this chapter; and provided further, that a person hired to temporarily replace an employee on family care leave or temporary disability leave shall not be considered an employee for the purposes of this chapter.

“Employer”, as provided in subsection (i) of section 1 of chapter 151A; provided, however, that for purposes of this chapter, the department of early education and care shall be deemed the employer of family child care providers, as defined in subsection (a) of section 17 of chapter 15D, and the PCA quality home care workforce council established in section 71 of chapter 118E shall be the employer of personal care attendants, as defined in section 70 of said chapter 118E; and provided further, that a political subdivision or its instrumentalities shall not be subject to this chapter unless it adopts this chapter under section 10; provided further, that an entity not deemed an employer under subsection (i) of section 1 of chapter 151A may opt to be considered an employer for the purposes of this chapter through a notification and registration process as determined by the department.

“Employment”, employment as defined in subsection (k) section 1 of chapter 151A.

“Employment benefits”, benefits provided or made available to employees by an employer including, but not limited to, group life insurance, health insurance, disability insurance, sick time, annual or vacation leave, educational benefits and pensions or other retirement accounts.

“Family member”, spouse, domestic partner, child, parent, parent of a spouse or domestic partner, an individual who stood in loco parentis to the employee when the employee was a minor child, grandchild, grandparent, or a sibling of the employee.

“Family leave benefits”, wages paid to an employee on family leave.

“Family leave”, leave taken by an employee from employment to provide care for a family member for 1 of the following reasons: (i) to bond with the employee's child during the first 12 months after the child's birth or the first 12 months after the placement of the child for adoption or foster care with the employee; (ii) a serious health condition of a family member; or (iii) because of a qualifying exigency pursuant to the Family and Medical Leave Act, 29 U.S.C. 2612(a)(1)(e), arising out of a family member of the employee being on active duty in the armed forces of the United States.

“Health care provider”, health care provider as defined in section 1 of chapter 111.

“Medical leave benefits”, wages to an employee who is on medical leave from employment.

“Medical leave”, leave taken by an employee from employment due to a serious health condition of the employee that renders the employee unable to perform the functions of the employee’s position.

“Premium”, the amount paid by the employer, the employee or a self-employed person into the family and medical leave security trust fund to receive family and medical leave benefits.

“Serious health condition”, an illness, injury, impairment or other physical or mental condition that involves either: (i) inpatient care in a hospital, hospice or residential medical facility; or (ii) continuing treatment by a health care provider.

“State average weekly wage”, the average weekly wage in the commonwealth as determined under subsection (a) of section 29 of chapter 151A.

“Wages”, wages as defined in subsection (s) of section 1 of chapter 151A.

“Weekly benefit amount”, the amount of wages paid to an employee on a weekly basis while on family or medical leave.             

Section 2. (a) There shall be a department of family and medical leave within the executive office of labor and workforce development which shall be administered by a director. The director shall oversee the administration of family and medical leave benefits. The director may hire staff, subject to the approval of the secretary of labor and workforce development, as needed to fulfill the powers and duties of the department.

The department shall administer claims for family and medical leave benefits and implement an appeals process for claims denied. The department may also investigate any claims and refer violations of this chapter to the attorney general. Claims for family and medical leave benefits shall be filed with the department and handled under the procedures prescribed in sections 1, 10, 11, 12, 14, 15 and 16 of chapter 30A.

The department shall inform employees and employers about an employer’s obligations under this chapter, the availability of family and medical leave benefits, the requirements for receiving such leave and benefits and how to apply for such leave and benefits. The department shall maintain a website and phone line to provide employers and employees with such information, in addition to information related to the status of a filed claim for family or medical leave benefits.

(b) The attorney general shall be responsible for the enforcement of this chapter and may promulgate rules and regulations to carry out this chapter; provided, however, that penalties or violations recovered under this chapter shall be deposited in the Family and Employment Security Trust Fund.

(c) All presumptions shall be made in favor of the availability of leave and the payment of family and medical leave benefits under this chapter.

Section 3. (a) An employee shall be eligible for family or medical leave if the employee has accrued at least 1,250 hours of service for an employer. A participating self-employed person shall be eligible for  family or medical leave if the self-employed person has paid a premium for at least 2 consecutive quarters during the past 12  month base period prior to the claim.

An employee or self-employed person shall be eligible for a maximum of 16 weeks of family leave in a benefit year.

An employee or self-employed person shall be eligible for medical leave for a maximum of 26 weeks in a benefit year. An employee or self-employed person may take an aggregate of not more than 26 weeks of family and medical leave under this chapter in the same benefit year.

(b) An employee may take leave under this chapter intermittently or on a reduced leave schedule, provided that the employee and the employer agree to the intermittent or reduced leave schedule and document it in a manner determined by the department. The employer shall engage in a timely, good faith and collaborative process with the employee to determine a reasonable intermittent or reduced leave schedule.

(c) An employee or self-employed person on family or medical leave shall receive a weekly benefit amount, as determined under section 4.

(d) An employee who has taken family or medical leave shall be restored to the employee’s previous position, or to a substantially similar position, with the same status, pay, employment benefits, length of service credit and seniority the employee had at the beginning of the leave. An employer shall not be required to restore an employee who has taken family or medical leave to the previous or to an equivalent position if other employees of equal length of service credit and status in the same or substantially similar positions have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of leave; provided, however, that the employee shall be extended the same rights or benefits, if any, extended to employees of equal length of service in the equivalent position.

(e) The taking of family or medical leave shall not affect an employee's right to accrue vacation time, sick time, bonuses, advancement, seniority, length of service credit or other employment benefits, plans or programs for which the employee was eligible at the date of the employee’s leave. The employer shall continue to provide for and contribute to the employee’s employment-related health insurance benefits, if any, for the duration of an employee’s family or medical leave under the same terms and conditions as those in effect prior to the employee’s leave.

(f) Nothing in this chapter shall be construed to affect a collective bargaining agreement, company policy or other federal, state or municipal law that provides greater or additional rights to family or medical leave than those provided under this chapter.

(g) Nothing in this chapter shall be construed to permit an employer to compel an employee to exhaust rights to any sick, vacation or personal time prior to or while taking leave under this chapter.

(h) Leave taken under this chapter shall run concurrently with leave taken under either section 105D of chapter 149 or the federal Family Medical Leave Act, 29 U.S.C. 2611, et. seq.

Section 4. (a) No family or medical leave benefits shall be paid during the first 7 consecutive calendar days of such leave. An employee may, but shall not be required to, utilize accrued sick, vacation or any other paid time off during the first 7 consecutive calendar days of such leave. An employee or self-employed person who receives medical leave benefits due to pregnancy and requests family leave for the birth of a child shall receive family leave benefits immediately upon approval of the family leave.

(b) The weekly benefit amount for an employee or self-employed person on family or medical leave shall be 50 per cent of an employee’s or self-employed person’s average weekly wage; provided, however, that the maximum weekly benefit amount shall not exceed $1,000 dollars per week.

An employee on an intermittent or reduced leave schedule shall receive a prorated weekly benefit amount, as determined by the department.

(c) The weekly benefit amount shall be reduced by the amount of wages or wage replacement an employee receives while on family or medical leave under              any of the following: (i) a government program or law including, but not limited to, unemployment insurance, worker's compensation other than for permanent partial disability incurred prior to the medical leave claim or under other state or federal temporary or permanent disability benefits law; or (ii) a permanent disability policy or program of an employer.

The weekly benefit amount shall be reduced by the amount of wage replacement an employee receives while on family or medical leave under any of the following, if the aggregate amount an employee would receive exceeds the employee’s average weekly wage: (i) a temporary disability policy or program of an employer; or (ii) a paid family, or medical leave policy of an employer.

Section 5. (a) Each employer shall keep posted in a conspicuous place on each of its premises a workplace notice prepared by the department providing notice of benefits available under this chapter. The workplace notice shall be issued in English, Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian and any other language that is the primary language of at least 10,000 or 1/2 of 1 per cent of all residents of the commonwealth. Each employer shall post the workplace notice in English and each primary language other than English which is the primary language of 5 or more employees of that workplace, if such notice is available from the department.

Each employer shall issue to each employee, not more than 30 days from the beginning date of the employee’s employment, the following written information provided or approved by the department: (i) an explanation of the availability of family and medical leave and benefits provided under this chapter; (ii) the employee’s contribution amount and obligations under this chapter; (iii) the name and mailing address of the employer; (iv) the identification number assigned to the employer by the department; (v) instructions on how to file a claim for family or medical leave benefits; (vi) the address and telephone number of the department; and (vii) any other information deemed necessary by the department. Delivery is made when an employee provides written acknowledgement of receipt of the information.

Any employer who fails to comply with this subsection shall be punished, for a first violation, by a fine of not less than $50 and not more than $300 and for a subsequent violation by a fine of not less than $300 and not more than $1,000. The employer shall have the burden of demonstrating compliance with this subsection.

(b) The employee shall give at least 2 weeks’ notice to the employer of the anticipated starting date of the leave, the anticipated length of the leave and the expected date of return or shall provide notice as soon as practicable if the delay is for reasons beyond the employee's control. If an employer fails to provide notice of this chapter as required under subsection (a), the employee’s notice requirement shall be waived.

Section 6. (a) An employee taking family or medical leave under this chapter may be required to provide certification to the employer and the department. An employee shall provide certification supporting a request for leave under this chapter as soon as practicable; provided, however, that an employer shall not delay family or medical leave or delay payment of benefits for the period in which leave is taken for employees entitled to a weekly benefit under section 3, if the employer has not yet received the certification.

The department shall process the notification and certification upon receipt and provide notice to the employer and employee of its determination of the employee’s eligibility for benefits. The department shall provide a process for self-employed persons to provide notice and certification to receive benefits. A self-employed person, employer or employee may appeal the departments’ eligibility determination, according to the process established by the department.

Certification for medical leave shall include, but not be limited to: (i) the date on which the serious health condition commenced; (ii) the expected period of time the employee plans to be on medical leave; (iii) a description of the serious health condition from a health care provider as required by the department; and (iv) a statement from the health care provider confirming that the employee is unable to perform the functions of the employee’s position due to the serious health condition.

Certification for family care leave shall include, but not be limited to: (i) the expected period of time the employee plans to take family care leave; (ii) a statement affirming that the employee is needed to care for a family member or bond with a child; and (iii) relevant medical information provided by a health care provider. Certification for military exigency leave shall include, but not be limited to: (i) a copy of the covered servicemember’s active-duty orders or (ii) other documentation issued by the military.             

The department may request updated information, including updated medical information, from a self-employed person or employee to ensure accurate updates of the actual period of family or medical leave. A self-employed person or employee shall provide additional notification to the department and employer, if applicable, of the actual date a self-employed person or employee returns to work and is no longer collecting benefits.

The department shall develop certification forms, as well as any other necessary forms or notices, for family and medical leave and make them available on the department’s website.

(b) Medical or health information required under this section shall be treated as confidential and not disclosed except with permission from the employee who provided it unless disclosure is otherwise required by law. Nothing in this section shall be construed to require an employee to provide as certification any information from a health care provider in violation of section 1177 of the Social Security Act, 42 U.S.C. 1320d-6, or the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d-2.

(c) An employee or a self-employed person shall not be eligible to receive familyor medical leave benefits if the director finds that the employee or self-employed person, for the purpose of obtaining these benefits, has willfully made a false statement or representation, with actual knowledge of the falsity thereof or has willfully withheld a material fact concerning the facts required to be certified pursuant to this subsection. If found ineligible by the department, an employee or self-employed person may be liable for the repayment of any received family or medical leave benefits to the Family and Employment Security Trust Fund.

Section 7. (a) An employer shall secure family and medical leave benefits for employees by making contributions, solely or jointly with employees, to the Family and Employment Security Trust Fund established in section 8 in the form and manner determined by the department. Contributions shall be proportionate to the employee’s salary.

(b) A self-employed person may secure family and medical leave benefits by making contributions to the Family and Employment Security Trust Fund established in section 8 in the form and manner determined by the department; provided, however, that a self-employed person shall be responsible for the full contribution amount paid by an employer and employee jointly.

(c) An employer may require an employee to provide up to 50 per cent of the contribution required by this section. An employer may contribute an amount that is greater than the amount contributed by the employee.

Section 8. (a) There shall be a Family and Employment Security Trust Fund, which shall be administered by the director exclusively for the purposes of this chapter. The trust fund shall consist of: (i) employer and employee contributions collected pursuant to section 6 together with any interest earned thereon; (ii) property or securities acquired through the use of money belonging to the trust fund together with any earnings of such property and securities; (iii) fines and penalties collected under this chapter; and (iv) other money received from any source, including any grants, gifts, bequests or money authorized by the general court or other party specifically designated to be credited to the trust fund. Money remaining in the fund at the end of a fiscal year shall not revert to the General Fund. Amounts credited to the fund shall not be subject to further appropriation. The trust fund shall maintain an annualized amount of at least 140 per cent of the previous year's expenditure.

(b) The administration of this fund shall be supported through the fund and the director shall pay all expenses incurred in administering this chapter; provided, however, that the costs of administering the benefits under this chapter shall not exceed 5 per cent of the amount deposited under subsection (a) for each fiscal year.

(c) The director shall expend money from the trust fund to provide weekly benefits under section 4. Family and medical leave benefits shall be paid from the trust fund to employees and participating self-employed persons. An employer’s bankruptcy or noncompliance with this chapter shall not interfere with an employee’s ability to collect family and medical leave benefits under this chapter.

Family or medical leave benefits paid from the trust fund to such an employee may be recovered through bankruptcy proceedings or from the noncomplying employer. The director shall institute administrative and legal action to recover family or medical leave benefits paid through the trust fund.

(d) To accumulate funds for the payment of family and medical leave benefits and administrative costs, employers and employees and participating self-employed persons shall pay an amount determined by the director and based on the employee’s salary or the self-employed person’s income. Contributions made under section 7 shall be transmitted to the trust fund in the manner determined by the department.

(e) Annually, not later than October 1, the director shall certify to the secretary of labor and workforce development the estimated costs for benefits and administrative services provided by the department for the coming year. Rates of employer contribution to the trust fund shall be adjusted annually consistent with the needs of the operation of the trust fund.

(f) An employer to whom the department has sent a request for wage and employment information for an employee claiming family or medical leave benefits shall complete and file that information not later than 10 days after the date the request was sent. If an employer does not respond within those 10 days, that employer may be held liable for any related costs incurred by the department.

Section 9. (a) It shall be unlawful for an employer to retaliate by discharging, firing, suspending, expelling, disciplining or in any other manner discriminating against an employee for exercising a right to which such employee is entitled under this chapter or to interfere with the exercise of a right to which such employee is entitled under this chapter.

(b) It shall be unlawful for an employer to retaliate by discharging, firing, suspending, expelling, disciplining or in any other manner discriminating against an employee who has filed a complaint or instituted a proceeding or caused a proceeding to be instituted under this section, has testified or is about to testify in an inquiry or proceeding or has given or is about to give information connected to an inquiry or proceeding relating to this chapter.

(c) Any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee who has been restored to a position pursuant to this chapter that occurs within 6 months of such restoration or of an employee who has participated in proceedings or inquiries pursuant to this section within 6 months of the termination of proceedings shall be presumed to be retaliation under this section.

(d) An employee or former employee aggrieved by a violation of this section may, within 2 years, institute a civil action in the superior court. A party to the action shall be entitled to a jury trial. All remedies available in common law tort actions shall be available to prevailing plaintiffs and shall be in addition to any legal or equitable relief provided in this section. The court may: (i) issue temporary restraining orders or preliminary or permanent injunctions to restrain continued violations of this section; (ii) reinstate the employee to the same position held before the retaliatory action or to an equivalent position; (iii) reinstate full fringe benefits and seniority rights to the employee; (iv) compensate the employee for 3 times the lost wages, benefits and other remuneration and the interest thereon; and (v) order payment by the employer of reasonable costs and attorneys' fees.

(e) Nothing in this section shall be deemed to diminish the rights, privileges or remedies of an employee under any other federal or state law or regulation or under any collective bargaining agreement or employment contract; provided, however, that the institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to the plaintiff for the actions of the employer under any other contract, collective bargaining agreement, state law, rule or regulation or under the common law.

(f) An employer shall conspicuously display notices reasonably designed to inform its employees of their protection and obligations under this section and use other appropriate means to keep its employees so informed.

Section 10. A city, town or authority may adopt this chapter upon a majority vote of the local legislative body or the governing body. For the purposes of this section, a vote of the legislative body shall take place in a city by a vote the city council subject to its charter, in a town by a vote at a town meeting and for an authority by a vote of its governing body.

Section 11. The department shall promulgate regulations to implement this chapter.

SECTION 4. Subsection (b) of section 4 of chapter 175M of the General Laws, inserted by section 3, is hereby amended by striking out the figure “50” and inserting in place thereof the following figure:- 70.

SECTION 5. Said subsection (b) of said section 4 of said chapter 175M is hereby further amended by striking out the figure “70”, inserted by section 4, and inserting in place thereof the following figure:- 90.

SECTION 6. The first paragraph of said subsection (b) of said section 4 of said chapter 175M is hereby amended by adding the following sentence:- The department shall annually adjust the maximum weekly benefit amount to reflect changes in the United States Bureau of Labor Statistics Consumer Price Index for the Boston-Cambridge-Quincy consolidated metropolitan statistical area or its successor index.

SECTION 7. The department of family and medical leave shall promulgate regulations to implement this act not later than January 1, 2018.

SECTION 8. Sections 1, 2 and proposed sections 3 to 9, inclusive, of proposed chapter 175M of the General Laws shall take effect on January 1, 2019.

SECTION 9. Section 4 shall take effect on January 1, 2020.

SECTION 10. Section 5 and 6 shall take effect on January 1, 2021.