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Paid Family Medical Leave: The High Cost of the “Grand Bargain” for Employers - Pt. 3

Part 3: Death by a Thousand Paper Cuts – The Piling on of PFML Problems for Employers[1]

In addition to the Paid Family Medical Leave’s (“PFML’s”) problematic retaliation and intermittent leave provisions noted in the prior two Chamber articles, the PFML statute and associated regulations also contain lesser but still dire clauses that make the current PFML language unworkable for employers within the Commonwealth.

PFML Problem 1: Employees have the potential to be out of work 38 weeks in a Benefit Year.

PFML’s overly-broad definition of “family member” creates scenarios where employees can be on a job-protected leave 38 weeks in a given Benefit Year. Federal Regulation 29 CFR § 825.701 states that an employee retains full FMLA rights whenever the employee uses a state leave program for situations not covered under the FMLA. Thus, as an example, a Massachusetts employee can take PFML for 12 weeks to care for a biological or adopted sibling. That same employee can then take an additional 12 weeks of FMLA to care for their child (under the age of 18). After that, the employee can take an additional 14 weeks of PFML to address his/her own medical condition. Thus, if an employee’s leave requests are pursued in a particular order – e.g., family PFML leave not covered by FMLA, then family leave under FMLA, then PFML medical leave – an employee can take 38 weeks of job-protected leave.

PFML Problem # 2: No temporary reassignment of employees on intermittent PFML.

As discussed in the last article, employees can use PFML to unilaterally shift to part-time employment while retaining benefits provided solely to full-time employees. Unlike FMLA, however, PFML does not allow an employer to temporarily reassign this employee “to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.” 29 CFR § 825.204. Therefore, an employee’s unilateral decision to retain their full-time position on a part-time basis can create significant problems for employers where that employee holds a critical position (e.g., manager or supervisor), possesses specialized skills, or is a driver assigned to a delivery route that: (i) requires a certain number of service days above and beyond the intermittent leave schedule of the employee, or (ii) requires the driver to arrive at a location at a specific time, which may conflict with the intermittent leave schedule. Employers will likely be required to hire part-time employees to cover PFML leave days, increasing the employer costs associated with these prolonged PFML absences.

PFML Problem # 3: Multiple employees can take leave for the same family member with a “serious health condition.”

PFML permits employees up to 12 weeks of leave per Benefit Year to care for a “family member” with a “serious health condition.” Unfortunately, the statute places no limitations on the number of employees who can take leave for the ailing family member. Rather, PFML allows a “Health Care Provider” to simply proclaim that the employee must care for the family member, without ever disclosing either the actual family condition or whether other family members are also seeking leave. Thus, for companies such as Gold Medal who hire multiple family members (and multiple generations), one qualifying illness can have significant impact on company operations.

Consider, for example, the following scenario that could occur under the new law. A Health Care Provider diagnoses a grandmother with a qualifying condition, and an employer employs many of the grandmother’s relatives. Under this scenario, the Health Care Provider can opine that all working relatives are necessary caregivers, and therefore the related employees are all eligible for PFML. As the Health Care Provider need only state that a family member has a serious health condition, state the probable duration of the family member’s serious health condition, estimate the frequency and anticipated duration of time that the employee is needed to care for the family member, and state that the employee is needed to care for that family member, this will create a situation where many employees may be eligible to take PFML to care for a single individual, potentially overburdening Massachusetts companies – and the Commonwealth’s Paid Leave Trust Fund.

PFML Problem # 4: PFML restricts employer rights available under Federal and Commonwealth Leave laws.

PFML also creates restrictions on current employer rights under state and federal laws. As noted above, employers can no longer reassign employees on FMLA leave to a position better suited to address their intermittent leave if PFML runs concurrent with FMLA. Additionally, PMFL specifically undercuts FMLA and Massachusetts Sick Leave laws by prohibiting an employer from requiring an employee to use paid sick leave when taking PFML. This proscription makes no sense given that the very purpose of PFML is for situations covered under the Massachusetts Sick Leave law and FMLA.

Conclusion

The above problems further establish that the hastily crafted and implemented PFML statute creates significant practical hurdles, and is a troubling burden to companies operating in the Commonwealth. The Commonwealth should therefore revise the statute and regulations to construct a workable program for both Commonwealth employers and employees.

Next month: Still unanswered PFML questions and issues.

[1] The author is grateful to Amy Condon, Esq. for her invaluable editorial comments on this article.

About William Rocha

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William J. Rocha provides part-time general counsel services to privately-owned small and mid-size companies. He began his fifteen-year legal career as a litigator, focusing primarily on business, employment, and patent litigation. He then went in ho… Read More

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