Department of Family and Medical Leave proposals aim for regulatory clarity.

Byline: Pat Murphy

The Department of Family and Medical Leave's proposed revisions to the state's paid leave law bring needed clarity to an array of key issues ranging from independent contractor status to retaliation, employment lawyers say.

On May 15, the department released for public comment a final draft of proposed revisions to the regulatory framework for the Paid Family and Medical Leave Law.

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"The definition of 'covered contract worker' is going to exclude a lot of workers who really need help in this economy."

Raymond Dinsmore, Springfield

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For the past four months, Boston attorney Janette A. Ekanem has headed a Massachusetts Bar Association working group that has provided the DFML with feedback regarding potential rule changes. The management-side lawyer said one of the more important changes under consideration clarifies when a contract worker is considered an "independent contractor" ineligible for benefits.

"That was a big thing because a lot of employers do have contract workers, and these new regulations essentially say that covered contract workers who are properly classified as 'independent contractors' under Massachusetts unemployment law are not eligible for PFML benefits, even if they do make up 50 percent of the workforce," Ekanem said.

But some plaintiffs' attorneys question whether the proposals go too far in favoring employers.

"While the proposed regulations provide benefits to employees and 'covered contract workers,' the definition of 'covered contract worker' is going to exclude a lot of workers who really need help in this economy," Springfield attorney Raymond Dinsmore said.

Back to the drawing board?

The Legislature enacted the Paid Family and Medical Leave Law in 2018. Beginning in January 2021, most workers in the state will be eligible for up to 26 weeks of combined family and medical leave per benefit year. The program is funded by premiums paid by employees, employers and the self-employed.

Last June, the Department of Family and Medical Leave issued its "final" regulations for the PFML program. Codified at 458 CMR 2.00, the regulations address issues such as the determination of covered businesses and covered contract workers; required contributions to the Family and Employment Security Trust Fund; exemptions for private plans; claims for benefits; and the DFML's procedures for approval of claims.

Mary J. Kennedy, a management-side attorney in Springfield, said the department's...