Bill S.2605

FILED ON: 2/6/2024

SENATE . . . . . . . . . . . . . . No. 2605

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act improving the Massachusetts paid family medical leave law.

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. The General Laws, as appearing in the 2022 edition are hereby amended by adding, after Chapter 23M, the following new section:

Chapter 23N.

Section 1. (a) There is hereby established an advisory council on paid family and medical leave in this chapter and in chapter one hundred and seventy-five M, called the advisory council, with members to be appointed by the Governor. The voting membership of said council shall be composed of nine members in total with four members representing employers and providers of paid family and medical leave in the commonwealth, at least one of whom shall represent manufacturing classifications, at least one of whom shall represent the retail industry, at least one of whom shall represent contracting classifications, and one of whom shall represent the staffing industry and four members representing employees, at least one of whom shall represent a private sector union, one of whom shall represent a public sector union, one of whom shall represent a community based organization, and one of whom shall have knowledge and experience with the temporary disability insurance system”. The Governor shall also appoint one member representing the public provided the public member has appropriate knowledge and familiarity with paid family and medical leave law and practices in the workplace.

The Governor shall also appoint one member representing the temporary disability insurance industry, 2 attorneys specializing in employment and/or labor law, with one having a practice representing employees and one having a practice representing employers, and one member who is self-employed, none of whom shall be voting members.

The secretary of labor and workforce development and the secretary of housing and economic development shall be ex officio, nonvoting members. Any person appointed to fill a vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the unexpired portion of such term.

(b) In appointing initial members to the Advisory Council, the Governor shall appoint one employer and one employee member for a period of two years, one from each group for a period of three years, one from each group for a period of four years and one for each group for a period of five years. The two public members shall be appointed for a period of three years. After the initial appointment, each appointee shall be eligible to be reappointed for one term of five years. Members shall be eligible for no more than an initial appointment and one reappointment. In appointing council members, the Governor must seek to appoint members reflecting the widest representational diversity possible consistent with the demographics of the commonwealth.

Seven members shall constitute a quorum for purposes of holding a meeting and voting. No formal action or position shall be taken by the council without the affirmative vote of at least seven members. All members of the advisory council shall serve without compensation and at the pleasure of the Governor. The advisory council shall meet no less than quarterly during each calendar year.

Meetings of the advisory council shall be called by the chair or upon written petition by a majority of voting members. Such meetings shall be subject to section 11A1/2 of chapter 30A. The secretary of labor and workforce development or designee, the chair of the commonwealth employment relations board, and the director of the department shall serve as ex-officio non-voting members of the advisory council.

Extraordinary meetings of said advisory council may also be called by the chairman and vice chairman, jointly or upon petition by a majority of voting members. Such meetings shall be subject to the provisions of section 11 1/2 of chapter 30A. Said advisory council shall take no action pursuant to its authority under this chapter or said chapter one hundred and seventy-five unless a quorum of its voting members is present.

Meetings may be held more frequently at the joint request of the chair and vice chair of the council, provided they give all members at least 30 days notice of any extraordinary meeting and its purpose or of their intention to regularly hold meetings more frequently.

(c) The governor shall, from time to time, designate one of the council members as chair of the advisory council. The chair shall serve for no more than 2 years, and the position shall rotate among employee, employer, and public members. No member of the advisory council shall be subject to chapter 31. Such appointees shall not succeed themselves as chairman or vice-chairman.

Members shall receive their traveling and other necessary expenses incurred in the performance of their duties.

Section 2. The advisory council shall appoint such personnel as are reasonable and necessary for the proper discharge of its duties, subject to the approval of the secretary of labor and workforce development. The staff of the advisory council shall be funded from administrative cost monies collected for the Family and Employment Security Trust Fund in accordance with the provisions of section 7 of said chapter one hundred and seventy-five M. The advisory council may expend for personnel and office expenses funds appropriated to the department for that purpose.

The director shall provide for the advisory council suitable meeting space and such clerical and other administrative assistance as the director and the council may deem necessary.

Section 3. The advisory council shall monitor, recommend, give testimony, and report on all aspects of the Paid Family and Medical Leave system, except for the adjudication of particular claims or complaints. Its powers include the issuance of reports, recommendations for legislation, policies and programs, the conducting of research, the collecting of data from public and private sources, and powers granted under the provisions of chapter one hundred and seventy-five M to oversee the operation and implementation of the law.

The advisory council shall report at least annually in writing by no later than 90 days following the last day of the fiscal year of the commonwealth to the secretary of labor and workforce development on the state of the Paid Family and Medical Leave system, and shall cause a copy of such report to be filed with the clerks of the house and senate of the general court who shall send copies of such report to the joint committee on labor and workforce development and the house and senate committees on ways and means. The report shall include an evaluation of the operations of the department, and of the experience and financial condition of the Family and Employment Security Trust Fund, along with recommendations for improving the paid family and medical leave system.

Said advisory council shall also review the annual operating budget of the department, as prepared by the director and as submitted to the secretary of labor and workforce development. Upon the affirmative vote of at least seven voting members, the advisory council may submit its own recommendation for the total operating budget to the secretary of labor and workforce development.

The agency shall cooperate fully with all reasonable written requests for information and documentation from the advisory council requested in pursuit of its established duties.

No later than five years after the establishment of the advisory council, it shall make an investigation and study as to the costs and benefits associated with the regulations implementing the insurance options pursuant to Section 11, to ensure completeness of coverage and competitiveness in pricing.

The advisory council may expend, for the legal, actuarial, research, clerical, and other expenses involved in the completion of such investigations and studies, such sums as may be appropriated therefor subject to the administrative oversight of the Executive Office of Labor and Workforce Development.

Said council shall file the results of its investigations and studies, and its recommendations, if any, together with any drafts of legislation necessary to carry its recommendations into effect with the governor and with the clerks of the house and senate of the general court at the end of each fiscal year.

Section 4. Upon the creation of formal appeal and review process into an appeals board for resolving claims by the Department of Family and Medical Leave, the advisory council shall serve as the nominating panel for the appointment of any members to the appeals board. Before any submission of nominations for appointment or reappointment to the board of review by the Governor, the advisory council shall review applications for such nominations and consider the following factors:

(1) skills in fact-finding;

(2) demonstrated basic understanding of family and medical leave law and/or temporary disability law; and

(3) a bachelor's degree, advanced degree or demonstrated writing ability as evidenced by at least 4 years in positions in which writing skills are a major job responsibility.

Each review of an applicant shall be made based on the application, experience, education and training of the applicant, writing samples, in-person interviews, and any other information the panel may require. When the application is for reappointment, the panel shall review, in addition to any other information, the performance since the candidate's appointment including, but not limited to:

(1) three decisions written and selected by the applicant;

(2) where applicable, the total number of cases decided by the applicant heard by an appellate body, and the number of those cases which were remanded for further proceedings;

(3) any decisions of an appellate body which specifically reference the candidate's demeanor or temperament;

(4) at the discretion of the director, written complaints from organizations that appear before the appeals process, to the director regarding the candidate's demeanor or temperament; and

(5) evidence of any demonstrable bias against particular parties, organizations or attorneys.

The advisory council shall rate the candidate as highly qualified, qualified or unqualified.

If appropriate or requested, any information regarding a candidate compiled by the state advisory council or the director shall be forwarded to the governor prior to the Governor selecting an applicant.

SECTION 2. Section 1 of chapter 175M of the General Laws, as appearing in the 2020 Official Edition, is hereby further amended by striking out, in line 26, the words “1099-MISC” and inserting in place thereof the following words:- 1099-NEC, or successor form,

SECTION 3. Said section 1 of chapter 175M, as so appearing, is hereby further amended by striking out, in line 30, the words “1099-MISC” and inserting in place thereof the following words:- 1099-NEC, or successor form,

SECTION 4. Subsection (a) of section 4 of chapter 175M, as so appearing, is hereby amended by inserting after the second paragraph the following paragraph:-

When an employee requests leave under this chapter, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under this chapter, the employer must notify the employee of the employee's eligibility to take paid leave under this chapter within five business days, absent extenuating circumstances, by giving the employee the appropriate leave certification form as designated by the department, in the primary language of the employee.

SECTION 5. Said subsection (a) of Section 4 of chapter 175M, as so appearing, is hereby amended by inserting after the third paragraph the following paragraph:-

When a covered contract worker requests leave under this chapter, or when the covered business entity acquires knowledge that a covered contractor worker’s leave may be for a qualifying reason under this chapter, the covered business entity must notify the worker of the worker’s eligibility to take leave under this chapter within five business days, absent extenuating circumstances, by giving the worker the appropriate leave certification form as designated by the department, in their primary language.

SECTION 6. Subsection (b) of section 7 of chapter 175M of the General Laws, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:-

The costs of administering the department under this chapter shall be paid from the trust fund and in each fiscal year shall not exceed 5 per cent of the amount remaining in the fund at the end of the previous fiscal year; provided that, regardless of the trust fund balance at the end of a fiscal year, in no fiscal year shall the amount available to the director for administering the department decrease by more than 5 per cent from the previous year

SECTION 7. Subsection (e) of section 7 of chapter 175M of the General Laws, as so appearing, is hereby amended by striking clause (vii) from the first sentence in the second paragraph in its entirety and inserting the following clause at the end of clause (vi), on line 92:-

(vii) overall claimant demographics by age, gender, race and ethnicity, primary language of applicant, geography, average weekly wage, occupation, employment type (full or part time or self-employed), and the type of leave taken;

And by striking the word “and” after the semicolon at the end of clause (xii), at line 100;

And by striking clause (xiii) in its entirety and inserting at the end of clause (xii), at line 100, the following:-

(xiii) the number of cases remaining open at the close of such year; (xiv) the number of businesses and total workforce headcount enrolled, and the number of businesses and total workforce headcount covered by private plans; and (xv) the length of time between a covered individual’s first day of leave and their first payment of benefits. Data in (ii) through (vi), (xi), and (xv) shall be disaggregated by age, gender, race and ethnicity, primary language of applicant, geography, average weekly wage, occupation, employment type, and the type of leave taken. Data in (iii) and (vi) shall be further disaggregated by the relationship between the claimant and family member. Data in (vi) shall be further disaggregated by year of birth or placement.

SECTION . Said subsection (e) of section 7 of chapter 175M, as so appearing, is hereby further amended by inserting after the last sentence at the end of the second paragraph the following sentence:-

. The report shall also include details on the annual public education campaign conducted pursuant to subsection (f) of section 8 of this chapter, including, but not limited to, employer outreach efforts and materials, multilingual outreach materials and evidence of multimedia distribution.

SECTION 9. Said subsection (e) of section 7 of chapter 175M, as so appearing, is hereby further amended by inserting after the end of the second paragraph the following paragraph:-

The department shall establish a publicly accessible online dashboard using updated reporting information on the program. The information in the dashboard shall include: (i) total number of claims filed; (ii) total number of eligible claims; (iii) total number of claims denied; (iv) claimant demographics by age, gender, average weekly wage, occupation and the type of leave taken; and (v) average weekly benefit amount paid for all claims and by category of leave. The dashboard shall be updated no less than quarterly.

SECTION 10. Subsection (d) of section 8 of chapter 175M of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by inserting after the word “defendant”, in line 50, the following sentence:-

. The department shall cause to be published all hearing decisions on their website, provided, however, that the department shall refrain from including, or partially redact where inclusion is necessary, any personal data identifiers, including, but not limited to, names, date of birth, names of minor children and any protected medical information

SECTION 11. Subsection (f) of section 8 of chapter 175M, as so appearing, is hereby amended by striking out, in line 60, the word “a” and inserting in place thereof the following words:- an annual

SECTION 12. Notwithstanding any special or general law to the contrary, if an employee, hired as a result of a covered individual taking leave under the provisions of chapter 175M of the general laws, is subsequently separated from that employment when the covered individual is restored to that position, and is eligible for unemployment insurance benefits under the provisions of chapter 151A of the general laws, those benefit charges shall not accrue to the employer’s experience rating but rather shall be charged to the solvency fund.

SECTION 13. Not later than June 1, 2025, the department of family and medical leave shall report on the long-term financial stability of the Family and Employment Security Trust Fund, and review of existing policies under section 7 of chapter 175M, including the requirement that the trust fund shall maintain an annualized amount of not less than 140 per cent of the previous fiscal year's expenditures.