Employers must begin providing Paid Family and Medical Leave (PFML) to employees on January 1, 2021. The Massachusetts Department of Family and Medical Leave (DFML) recently released the final regulations for PFML with some changes.

There were numerous changes to rules surrounding employers opting for private plans. Key changes to note include:

• Private plans must cover the entire workforce, not just certain classes of workers.
• Private plans must also provide employees with an internal appeals process, with specific timing and procedural requirements, through the private plan administrator before the employee can seek an appeal with the DFML.
• Employers with private plans must provide a notice of rights under both the private plan and the PFML as part of any determination.
• Private plans must use an employee’s wages earned at the time of applying for benefits to determine the weekly benefit amount.

The final rules also discuss requirements when transitioning between private and state-sponsored plans. An employer that does not renew a private plan must continue to provide paid leave benefits to covered individuals under the same terms and conditions of the private plan for the entire duration of the leave if the claim was initiated under the private plan prior to its termination. In the case of intermittent leave, the private plan must maintain coverage until the end of the employee’s benefit year.

OSHA requires employers to provide notice of certain injuries and illnesses within eight to 24 hours, depending on the type and severity, and to record all work-related injuries and illnesses. Currently, COVID-19 cases must be reported if they are work-related.  However, some states have individual state-level OSHA plans with more stringent requirements. New Mexico falls into this category, and an emergency amendment to its injury and illness reporting regulations imparts a new temporary reporting requirement for COVID-19 cases.

Specifically, employers are required to report any cases in which an employee tests positive for COVID-19 within four hours of learning about the diagnosis, even if the illness is not work-related.  This emergency amendment remains in effect for 120 days, unless it is later made permanent.

Action Items

When the U.S. Department of Labor (DOL) issued its Final Rule implementing the Families First Coronavirus Response Act (FFCRA), the State of New York filed suit against the DOL claiming that parts of the Final Rule exceeded the DOL’s authority. As a result, the federal district court judge recently invalidated parts of the Final Rule.

In order to safely accommodate distancing and remote teleworking during the pandemic, the U.S. Immigration and Customs Enforcement (ICE) announced special flexibility for employers with regard to completing the physical inspection component of the Form I-9 Section 2.  This accommodation was originally set to expire on May 19, but was extended in May and June, and has been extended once more.  The new expiration date for the remote inspection of identifying documents accommodation is now August 19, 2020.

On the other hand, ICE also announced that there would be no further extensions granted to employers who received notices of inspection (NOI) from the agency during the month of March 2020.  Previously, employers who were served NOIs during March and had not yet responded were granted an automatic 60-day extension from the effective date.  However, no further extensions have been granted.

Action Items