E4: FMLA, PFMLA, Earned Sick Time — Where to Begin with Leaves of Absence?

May 24, 2022

We’re used to employees taking time off for vacation or having a baby. But in addition to the many other things we’ve learned from our experience with the pandemic, we now know there are many, many new reasons for taking time away from work.

Caring for family members, childcare closures, or maybe members of your team needing a mental health break due to burnout are all calls for time away. Even more complicated, our Massachusetts employers are also still adjusting to Paid Family and Medical Leave (PFML). If all of it is confusing to you, you’re not alone.

This week, Tom Jones and Mary McNally join Pete Wright to break down LOAs and answer some of the most common questions we get from employers.

Episode Transcript

Pete Wright:
Welcome to Human Solutions, Simplifying HR for People who Love HR, from AIM HR Solutions on True Story FM. I’m Pete Wright and this week we’re talking about leaves.

Pete Wright:
We’re used to employees taking time off for vacation or having a baby. But in addition to the many things we’ve learned, thanks to the pandemic, we now know, that there are many, many new reasons for taking time away from work: caring for family members, childcare closures, or maybe members of your team need a mental health break because of burnout. Even more complicated, our Massachusetts employers are still adjusting to paid family and medical leave. If all of this is confusing to you, you’re not alone. Today, Tom Jones and Mary McNally will break down LOAs and answer some of the most common questions we get from employers. Tom Jones, Mary McNally, welcome to the show this week. Thank you for joining me. I’m excited to talk about leaves. I don’t know why I’m excited to talk about leaves. I feel like there’s a lot of turmoil in understanding leaves and I need you all to help me understand what’s going on. Mary, I’ll start with you. Can you talk a little bit about the most commonly used leaves in Massachusetts?

Mary McNally:
Sure. Hi, Pete. Thank you for having me. There’s two main leaves that I think of when it comes to an employer in Massachusetts. The first one is the Family Medical Leave Act and that’s a federal law, so that’s not just for Massachusetts, but it does apply to Massachusetts employees. The other one is, and you mentioned in your introduction, the Massachusetts Paid Family and Medical Leave. The two of them can tend to run concurrently. We can talk a little bit more about that. I know Tom will want to chime in on that, but those really are the two leaves that come into play for Massachusetts employers.

Pete Wright:
Okay, Tom, then your turn, you have been officially segued to.

Tom Jones:
There’s a distinction too, to remember about those two laws. One is that the FMLA begins when there’s 50 or more employees so it may not cover every employer. But the Massachusetts was one or more employees, the paid family leave. Basically every employer in the Commonwealth is covered for purposes of the Paid Family Medical Leave assuming that you’re eligible for unemployment insurance benefits as an employee. If you’ve worked the equivalent of a quarters worth of time, paid enough earnings into the fund, you will be covered for purposes of Paid Family Medical Leave benefit. It’s a much more generous benefit than the FMLA.

Pete Wright:
It sounds like it. Does that count for people, I mean, I know there’s also a lot of turmoil around people who run a lot of 1099s. If you have a lot of 1099s, even if you have that one person who might work for you three quarter time and have other clients in the rest of their hours each week, are they impacted by any sort of leaves or is that just sort of a completely separate?

Mary McNally:
The Massachusetts PFML regulation says if 50% or more of your workforce is considered as independent contractors, then yes, they would be eligible to apply for a paid family leave. But if you are an employer and you have less than 50% of your workforce as independent contractors, then no, they’re not considered employees under your company.

Pete Wright:
Let’s talk a little bit about how you determine which leave applies to your given situation. It sounds like there is, you’ve set up the stakes between FMLA and PFML, you’re a HR manager and you are faced with a, let’s say, a cascade of new leave requests coming through. How do you start?

Mary McNally:
Myself being a former HR manager, what I would do if someone came to me and needed a leave of absence, I would try to get as much information as possible like, why are they going out on leave and how long do they need to be out for and so forth. I would have an internal checklist that I would do where I would say, “Okay, do they meet the requirements for FMLA? Have they worked the 1,250 hours within the previous year? Are we an employer that has 50 or more employees?” If the answer is yes, then I would say, “Okay, this person is eligible for FMLA,” but then simultaneously I would also look at my checklist to see if they would be eligible for PFML as well.

Mary McNally:
Most likely if they’re eligible for FMLA, they’re going to be eligible for PFML because PFML does not have requirements that are as strict as they are for FMLA. That’s what I would do. I would do that internal checklist. From there, I would say, “Okay, what documentation do I need to present to the employee in order to give the information that they need and also in order to keep the company in compliance?”

Tom Jones:
There’s a couple other things too, to be aware of that there’s a Massachusetts Parental Leave law, which is really slipping by the wayside here because the other two laws are so much more important, but there is a law that says that an employee has up to eight weeks of leave for the purposes of giving birth, for a new baby, both men and women, unpaid, only eight weeks, and it’s only full-time employees. Most employers would kind of kick that to the curb and said, “There’s really not much attention we’re going to pay to that one,” but it does still exist as a law. Depending what the reason is for the FMLA or PFMLA, that law, maybe… You want to run it concurrently at least, so that you can’t say, “wait…” nobody can come back later and say, “Oh, you didn’t give me this benefit when you ran the other benefits.” You want to make sure that you run them simultaneously.

Mary McNally:
Great point, Tom. That makes it even a little bit more interesting, because you mentioned about running leaves concurrently. If someone’s going out for family leave for the reasons of giving birth, and so now you have the Massachusetts Parental Leave, they could be eligible for FMLA. They’re definitely most likely going to be eligible for PFML, so it’s making sure you coordinate all of those. Like I mentioned before, you have to make sure that you provide the correct documentation to stay in compliance.

Mary McNally:
The other piece that I do want to point out is how is an employee paid when they’re on leave of absence? That’s a big difference between PFML and FMLA is, FMLA is job protection only. It does not include pay. An employer does not have to pay an employee if they’re eligible for FMLA. However, PFML is a paid benefit. Then you throw into the mix, a lot of companies also have a short-term disability plan as well. I know we won’t go into that because that could be a whole other podcast. But thinking about that too, so short-term disability, how does that fit in as far as pay is concerned when someone’s going out on a leave?

Pete Wright:
I do think it matters for this question, which is what are the limits for reasons you can take a leave under these? We’ve talked about the blossoming sort of number of circumstances that employees are coming and saying, “I need to take time off.” What do you, as an HR manager, need to know, what can you know, and where does the limit for requesting a leave stop? “My significant other runs a big cat reserve and some of the cats are sick and I need to take some time off.” I can keep going. What do you think, Tom?

Tom Jones:
There’s two types of leaves, though, you can broadly categorize. One of them is standard statutory and mandatory leaves like we’ve been talking about so far. But then there are these things called discretionary leaves, which some companies have dealt with exactly the way you’re talking about. You have an employee who comes to you and says, “I have exactly the situation you’re talking about. Personal issue, got to deal with them. My spouse, significant other does,” and companies trying to be flexible might say, “Okay, we’ll give you a discretionary leave of absence, a personal leave of absence, and you can take it for 30 days. What we might not do is be able to guarantee you a job when you come back. More than likely, in today’s world with the pandemic, we’re going to be able to give you a job. We’re going to encourage you to take it during slow season, as opposed to during the heavy season so that you can do that.”

Tom Jones:
So companies, we’re finding, being a lot more flexible, I think is the right word, then they had previously been because they want to hold onto employees that they know are good, qualified employees. You’re trying to dance that, which if the law doesn’t work maybe there’s something else that does work. It’s the conversation with your employees to try and figure out what are you really looking for for time off. Now, if somebody came to you and said, “Gee, I want time off to go work in my cousin’s restaurant.” You might say, “Well, I don’t think that’s a valid reason for a leave of absence.”

Pete Wright:
Are there limits, Tom, to what you, as an HR manager, can ask, or are there any privacy considerations involved here?

Tom Jones:
Generally there are going to be some privacy around medical issues at some limit, but if you get the… Here’s the difference, under FMLA the employer will get the documentation about the requesting nature of the leave from a medical, sort of medical provider. We’ll be able to use that to determine whether it’s covered under the law. Under the state plan, generally the state gets that information, not the employer, or the private insurance company gets it, not the employer and all the employer gets is, “Okay, so-and-so is eligible for leave.” You may not even be able to ask, unless the employee volunteers it in the context of the workplace, which some employees are very generous to do.

Mary McNally:
Exactly. I mean, when it comes to medical documentation it has to be very well protected. It has to be kept in separate files. Ideally, I think as an HR manager, you don’t want to be seeing medical documentation if you don’t have to. What I’m seeing now as a trend, is a lot of companies are actually outsourcing the leave of absence administration because they don’t want to be in the business of making leave decisions based on physician documentation or healthcare provider documentation that they are receiving.

Pete Wright:
I know we’re talking about health reasons. This obviously applies to mental health reasons. Another thing that is coming up more and more frequently right now as we navigate work-life balance and pandemic. We’ve got a distressing number of Millennials and Gen Zs who are saying that they are stressed and anxious. Deloitte reports 48% of Gen Zers and 44% of Millennials surveyed are stressed all or most of the time, all or most of the time. That is a terrifying statistic, certainly. And it seems like all the more important for employers and for HR to be looking at leaves as a strategic benefit for keeping the employee happy and healthy at the workplace. Is that a fair assessment?

Mary McNally:
Absolutely. I think the more that it can be communicated, the better. There are those statutory requirements under FMLA and PFML as far as notification. Going back to what you were saying, Tom, about discretionary leaves is that could be something a company could think about is, can we do anything beyond the statutory leaves, especially in areas, all medical areas, but obviously including mental health?

Tom Jones:
It actually opens the door up to another law we haven’t talked about yet, which is the Americans with Disabilities Act, which covers both illnesses and injuries and medical conditions and mental health conditions. Stress may qualify into that, in which case one of the accommodations under the Americans with Disabilities Act is time off from work. It could be another way of someone taking time off from work while they’re getting treatment, while they’re getting, resting, while whatever it might be. There’s going to be requirement that there’s some medical support for that, but the option does exist that somebody might say, “I want a leave because of my mental health conditions.”

Mary McNally:
Or a reduced work schedule, too.

Pete Wright:
A lot of tools, in other words, to make the job more palatable in times of stress. AIM members absolutely can utilize the online resource center and contact the employer hotline with leave of absence questions. I wonder if you all have a set of common questions that you hear, that maybe we could answer on the podcast? What are the big questions that you get when the hotline rings with an LOA request?

Mary McNally:
One of the big ones is, can you run all these leaves concurrently? That’s one of the main ones, especially if the person is eligible for the FMLA and PFML. I know there’s so many acronyms. What I always tell people is, “You have to look at your, first your FMLA policy.” In an FMLA policy an employer can dictate the length of time that they can review to see when somebody is eligible for a leave, like say, an additional leave.

Mary McNally:
For instance, let me give an example, this will be better. I’m an employer. I know that a person can get up to 12 weeks within a year. Defining that year, is it calendar year? Is it rolling forward from the date of the leave, the most recent leave of absence? Is it 12 months rolling backwards? Because PFML uses a rolling forward period of time to define when someone’s eligible within a 52-week period, if you have an FMLA policy that also uses the look forward method, then you can run them concurrently. There still will be a little bit of time that they don’t overlap because actually PFML starts the Sunday prior before the leave date, where FMLA starts the actual date, but it’s close enough to run them concurrently. That’s what we tend to tell people. Like Tom mentioned, that the Massachusetts Parental Leave, that usually can run concurrently with both of them.

Tom Jones:
It was nice enough for Mary to talk there, it gave me a little moment to think to answer your question, Pete. Some of the other things that do come up regularly, or one of them is, can I offset this against other… for example, somebody’s on short-term disability, workers comp, unemployment. Can I offset the pay from one against the pay from another? That comes up as a question. The law actually has an issue to address that. There’s a mechanism where, generally paid family leave pays first and would say, so-and-so’s collecting unemployment, but it turns out that they’re also eligible for the paid family leave because you can go on the paid family leave after you’ve been, let go from a job. There’s a provision in the law that allows that to happen. The question then is, who pays the benefits during that period of time?

Tom Jones:
There’s a mechanism in the law to work that out. Another thing is top-ups. Someone who’s a very well-paid employee that there’s statutory limit as to how much you can get, I think is 1,084 right now. If somebody’s used to making two, $3,000 a week, they might say, “Is there any way the company can top that up?” Under certain circumstances, there’s a provision in the law that you can do so. Under other circumstances you can’t, depends kind of where you’re getting your insurance.

Tom Jones:
The third one I see come up a lot is, can you discipline people when they’re out, especially after they’ve returned to work, or after they’ve returned to work? If someone took a leave, come back to work, at what point does it become not retaliation to discipline that person for their performance? That’s a brand new world for companies because the law is brand new and we don’t really know what the courts are going to say over… If you come back to work, Pete, and then say, a week later, I write you up for something is that retaliation because you took the leave or is that just a genuine poor performance?

Pete Wright:
It’s probably retaliation. I mean, if it’s me, it’s probably retaliation. Somebody’s got a grudge.

Tom Jones:
I mean, companies are struggling with that very point because there’s a provision in the law that says for up to 26 weeks after you return to work, or six months, right?

Mary McNally:
It’s six months, correct.

Tom Jones:
Six months, you return to work, then it may be presumed to be retaliation and action against the employee. Now, I mean, if you stole something from the company, that’s one thing, but in the gray area, companies are really struggling with figuring out what constitutes retaliation versus what’s reasonable discipline.

Pete Wright:
The gray area being performance management versus breaking a criminal statute.

Tom Jones:
Exactly.

Mary McNally:
Exactly.

Tom Jones:
If someone’s been out of work for a couple months and really caused grief for the company in terms of production and all that, there may be some residual anger against that person that may manifests itself in the disciplinary action toward the person. That’s where you can get in trouble.

Pete Wright:
Fascinating. Remember, everybody listening to this, definitely use that hotline. Give us more great examples to talk about when you call that hotline and use those AIM resources for AIM members. Mary McNally and Tom Jones, thank you both so much. How’d we do? You feel pretty good about this?

Tom Jones:
Yeah. [inaudible 00:17:51]

Mary McNally:
Yeah. I always love talking about leaves of absence.

Pete Wright:
Outstanding.

Tom Jones:
I was just thinking there’s other ones out there we didn’t even get a chance to touch on like earned sick time, domestic violence leave, which we did touch on indirectly last week when we did the violence one.

Pete Wright:
We did, we talked about violence in the workforce.

Tom Jones:
Small necessities leave.

Pete Wright:
Does that include my big cats example?

Mary McNally:
It might. Someday, maybe. I don’t know. Maybe we can bring that to government affairs and see if they can get animals.

Tom Jones:
We can dive deeper in future podcasts [inaudible 00:18:18].

Mary McNally:
[inaudible 00:18:18].

Pete Wright:
Outstanding.

Tom Jones:
I mean, the other one is… Pregnant Workers Fairness Act has a leave of absence component to it. There’s a lot of Massachusetts laws, so in the future, I think we could probably dig a little deeper, because these are the two that get the most attention, FMLA and PFMA, that’s absolutely true.

Pete Wright:
These are the ones that are going to get, are going to get the attention first.

Mary McNally:
Exactly. That are utilized the most, right?

Tom Jones:
Right.

Pete Wright:
That’s going to be a real hit episode when we come back together and talk about all of the minor leave laws. Going to be great. You don’t want to miss it. Thank you everybody. Thank you, Mary and Tom, it’s always a pleasure to talk to you both and thank you everyone for downloading and listening to this show. As always, you can find links and notes about the show at aimhrsolutions.com. You can listen right there on the website or subscribe to the show in Apple Podcasts or Spotify, anywhere fine podcasts are served. Thanks everybody. I’m Pete Wright. I’ll catch you next week right here on Human Solutions, Simplifying HR for People who Love HR.