Last Friday morning, the Chamber hosted more than 100 members at our office for an info session on Paid Family and Medical Leave with representatives from the Executive Office of Labor and Workforce Development and the burgeoning Department of Family and Medical Leave. Members heard a presentation on the most up to date details of the program and the department’s plans for implementation. We are grateful to our colleagues from the Baker Administration who not only answered questions during the session but stayed long after to speak individually and exchange contact information with individuals.
The night before our session, the Governor signed legislation for a three-month extension of the start date for paid leave contributions. Our guests on Friday confirmed that we should still expect final regulations on July 1 as planned. The extension applies to both contributions and the notification requirement. You can find updated workplace posters here. The extension also means that the initial taxation rate will be increased to .75 percent to collect the same total amount, equal to a 15-month reserve, by the program start date in 2021.
Who is Covered
The presenters spent a significant amount of time walking through the breakdown of who is covered by the new law and how employers should count their workforce. Importantly, they stressed that most employers are subject to the law regardless of their workforce, but exemptions will generally follow the guidelines for Unemployment Insurance exemptions. The department defined covered employees in the following way:
- All Massachusetts W2 Employees: An employee who receives W2 forms for services performed in Massachusetts and for whom an employer reports wages to the Department of Unemployment Insurance they are covered, regardless of the location of their primary residence.
- Certain Massachusetts 1099-MISC Contractors: If an employer’s workforce consists of over 50% 1099-MISC contractors, they may be covered by PFML if they meet the following criteria: they are an individual, they reside in Massachusetts, and they perform services in Massachusetts.
There remains quite a bit of confusion about the breadth of the 1099-MISC inclusion and employees who fall outside of these two categories. The department took questions about how to consider foreign persons who are captured by Form 1042, and individuals who receive 1099-MISC as a landlord or a paid speaker. They plan to issue guidance on these issues after further review.
Counting Workforce:There were important clarifications made about how employers should count their workforce, although many questions remain unanswered. Our speakers were clear that many questions regarding partial-Union workforce are still unanswered. Some clarifying points are below.
- Employers should use the 2018 calendar year as their starting point
- The average is locked in for one year
- 1099-MISC contractors should be included if they are a majority of the company’s workforce
- Start-ups are asked to use a ‘best faith estimate’
Additional Topics Covered
For W2 employees, qualifying earnings are aligned with the UI base. For 1099-MISC contractors, qualifying earnings are based on gross payments. Only one contribution is made, which is later split by the department.
Geographic Concerns for Multi-state Employers
Our speakers advised employers with complicated workforce location problems, such as employees who work part time in Massachusetts and part time out of state, or who live out of state and work from home for a company based in Massachusetts, to refer to Section 3 of Chapter 151A to help define location, residency and service within the Commonwealth.
When asked about small employers who will experience undue hardship due to the loss of an employee for up to six months the guidance was that the job must remain open and available to the employee on leave, but that a temp may be hired.
We will continue to provide further updates regarding the Paid Family and Medical Leave law and regulations. If you have any questions, feel free to contact Carolyn Ryan.