Tag Archives: Massachusetts

NEW LAW: New Requirements For Leave For Veterans In Massachusetts

On November 7, 2018, Massachusetts’  “BRAVE Act” (An Act Relative to Veterans Benefits, Rights, Appreciation, Validation and Enforcement) goes into effect.  This law changes an employer’s obligation  to grant leave to veterans on Veterans Day and Memorial Day.

Under the old law, which went into effect in 2016, employers were required to grant veterans time off on Veterans Day and Memorial Day to participate in an exercise, parade, or service in their community.  For employers with 50 or more employees, this time off was to be paid.

Under the new law, employers are required to provide Veterans with time off for  Veterans Day and Memorial Day as follows: Continue reading NEW LAW: New Requirements For Leave For Veterans In Massachusetts

NEW LAW – Paid Family and Medical Leave Coming to Massachusetts

On June 28, 2018, Massachusetts Governor Charlie Baker signed House Bill 4640 (the so-called “Grand Bargain”) into law.  Among other things, this new law will bring Paid Family and Medical Leave to Massachusetts starting on January 1, 2021.

Who is eligible to take Paid Family and Medical Leave?

This new leave law covers nearly all private sector employees.

What leave benefits are available?

Under this new leave law, starting January 1, 2021, eligible employees can take the following leave in a benefit year:

  • Up to 20 weeks of job-protected paid medical leave to care for their own serious health condition;
  • Up to 12 weeks of job-protected paid family leave

o    to care for a family member with a serious health condition,

o    to bond with the employee’s child during the first 12 months after the child’s birth or the first 12 months after the placement of the child for adoption or foster care with the employee, or

o    because of any qualifying exigency arising out of an employee’s family member being active duty or notification of an impending call or order to be in the Armed Forces; and

  • Up to 26 weeks of job-protected paid family leave to care for a covered servicemember.

This leave entitlement is subject to a combined maximum of twenty-six weeks of total leave in a year, which means that employees cannot take more than 26 weeks of paid family and medical leave in one benefit year.

Does Paid Family and Medical Leave run concurrently with federal FMLA or other mandated leaves of absence?

Yes.  Paid family and medical leave will run concurrently with both federal FMLA and Massachusetts Parental Leave.  However, if an employee takes Paid Family and Medical Leave but, at the time, is ineligible for federal FMLA may still take FMLA in the same benefit year, but only if the employee is eligible to take FMLA.

Is there a waiting period for taking Paid Family and Medical Leave?

In most circumstances, there is a 7-day waiting period before an employee can take paid family and medical leave.  During that period, employees may use accrued sick leave or vacation pay or other paid leave.

The only exception is where an employee wants to take medical leave during pregnancy or recovery from childbirth.  The employee will be able to take paid family and medical leave if the employee’s need for leave is immediate and the employee provides documentation from her medical provider.

What are the employee’s return to work rights?

Following the employee’s return from leave, the employee must be restored to the same or equivalent positions that he/she previously held.

How is the Paid Family and Medical Leave program funded?

The program will be funded through a payroll tax, which will be split between employers and employees.

Employees will be required to cover 100% of the contributions for family leave and 40% of the contributions for personal medical leave.

Employers with over 25 employees will be responsible for paying 60% of the contributions for personal medical leave.

Employers with 25 or less employees will not be required to contribute towards personal medical leave, but they will still be required to deduct the payroll tax from employees’ wages.

These contributions will begin on July 1, 2019.

Key Terms

  • Family member: The spouse, domestic partner, child, parent or parent of a spouse or domestic partner of the employee; a person who stood in loco parentis to the employee when he/she was a minor child; or a grandchild, grandparent or sibling of the employee.
  • Benefit year: the 52-consecutive week period beginning on the Sunday preceding the first day the protected leave begins
  • Serious health condition: An illness, injury, impairment or physical or mental condition that involves

o    Inpatient care in a hospital, hospice or residential medical facility; or

o    Continuing treatment by a health care provider.

  • “Qualifying exigency: A need arising out of a covered individual’s family member’s active duty service or notice of an impending call or order to active duty in the Armed Forces, including, but not limited to

o    Providing for the care or other needs of the military member’s child or other family member,

o    Making financial or legal arrangements for the military member,

o    Attending counseling,

o    Attending military events or ceremonies,

o    Spending time with the military member during a rest and recuperation leave or following return from deployment or

o    Making arrangements following the death of the military member.

Take Home for Employers

While these leave rights are several years away, all Massachusetts employers need to start preparing for paid family and medical leave.  In the coming months, we expect that there will be guidance released to help employers prepare for this leave.

NEW LAW: Massachusetts to Increase Minimum Wage with Grand Bargain

On June 28, 2018, Massachusetts governor Charlie Baker signed House Bill 4640 (the so-called “Grand Bargain”) into law.  Among other things, this new law will increase Massachusetts’ minimum wage to $15.00 per hour and tipped employee minimum wage to $6.75 by January 1, 2023.

Under the new law, Massachusetts’ minimum wage will increase in accordance with the following schedule:

Date Minimum Wage Increase Tipped Employee Minimum Wage Increase
January 1, 2019 $12.00 $4.75
January 1, 2020 $12.75 $4.95
January 1, 2021 $13.50 $5.55
January 1, 2022 $14.50 $6.15
January 1, 2023 $15.00 $6.75

In addition to increasing the minimum wage, the new law also updates (and ultimately eliminates) Massachusetts’ blue laws, which currently require employers pay retail employees time-and-one-half for hours worked on Sundays and holidays.  This will be accomplished by decreasing the premium by 10% until it is eliminated in 2023.  The decrease is illustrated below:

Date Blue Law Premium Decrease
January 1, 2019 1.4 times employees regular rate of pay
January 1, 2020 1.3 times employees regular rate of pay
January 1, 2021 1.2 times employees regular rate of pay
January 1, 2022 1.1 times employees regular rate of pay
January 1, 2023 Blue Law Premium Eliminated

Take Home for Employers

Employers should start making preparations for this increase in minimum wage, as a failure to pay employees at least minimum wage can result in hefty penalties.

 

 

Massachusetts Enlarges the “Ban” in its Ban-the-Box Law

In an amendment to its 8-year old ban-the-box law, Massachusetts will further restrict employers’ ability to inquire about applicants’ criminal histories. The amendments will take effect October 13, 2018.

Current Law

Massachusetts law currently prohibits employers from asking about an applicant’s criminal history on the initial application for employment (so called “ban-the-box”). Even after the initial written application, employers are prohibited from asking about the following types of criminal history:

  1. An arrest, detention, or disposition regarding any violation of law in which no conviction resulted;
  2. A first offense for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; and
  3. Any conviction of a misdemeanor where the date of conviction, or the completion of any period of incarceration resulting therefrom, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.

Amendments to the Law Continue reading Massachusetts Enlarges the “Ban” in its Ban-the-Box Law

NEW LAW — Massachusetts Pregnant Workers Fairness Act

On July 27, 2017, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (House Bill 3680) into law.  Under the law, Massachusetts employers with 6 or more employees will be required to provide reasonable accommodations to employees for pregnancy and related conditions (including lactation, or the need to express breast milk for a nursing child).  This new law goes into effect on April 1, 2018.

Most importantly, the new law specifically adds “pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child” to the list of protected classes under the Massachusetts Fair Employment Practices Law.

Under the law, it will be unlawful for an employer to deny a pregnant (or nursing) employee’s request for reasonable accommodation unless the employer can prove that providing an accommodation will cause the employer an undue hardship (an action requiring significant difficulty or expense).

“Reasonable accommodation” may include, but are not limited to:

  • providing more frequent or longer paid or unpaid breaks;
  • providing time off to recover from childbirth with or without pay;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • allowing the employee to work a modified work schedule.

Employers are required to engage in a timely, good faith and interactive process with the employee to determine effective reasonable accommodations that will enable the employee to perform the essential functions of the job.  For most accommodations, the employer may require the employee provide documentation from a health care professional about the need for a reasonable accommodation; however, documentation cannot be required for:

  • more frequent restroom, food and water breaks;
  • seating; and
  • limits on lifting over 20 pounds.

In addition, under the new law, it is unlawful for an employer to:

  • take adverse action against an employee who requests or uses a reasonable accommodation
  • deny an employment opportunity to an employee, if such denial is based on the need of the employer to make a reasonable accommodation relating to a known pregnancy;
  • require an employee affected by pregnancy to accept an accommodation that such employee chooses not to accept, if such an accommodation is unnecessary to enable the employee to perform the essential functions of the job;
  • require an employee to take leave of absence if another reasonable accommodation may be provided without undue hardship to the employer;
  • knowingly refuse to hire a person who is pregnant because of the pregnancy or pregnancy-related condition.

Notice Requirements

Employers must provide employees with written notice of the Act.  This written notice must outline the employee’s right to reasonable accommodations for pregnancy and related conditions.  The written notice must be provided to employees as follows:

  • new employees at time of hire;
  • existing employees by April 1, 2018; and
  • any employee notifying the employer of her pregnancy within 10 days of the date a pregnant employee informs the employer of her pregnancy.

Take Home for Employers

While the new law does not go into effect until April 1, 2018, Massachusetts employers should start reviewing their employee handbooks and make any necessary revisions to their policies relating to pregnancy and providing reasonable accommodation.  In addition, employers should start training their managers about the requirements of the new law.

Impact of Massachusetts’ New Recreational Marijuana Law on Employers

The Regulation and Taxation of Marijuana Act is the newly passed recreational marijuana law in Massachusetts, which was approved by voters in the 2016 election. This law decriminalizes recreational marijuana use in the state of Massachusetts.

The law legalizes the non-medical use and possession of up to 1 ounce of marijuana, keep up to 10 ounces of marijuana at home, and to cultivate up to 6 marijuana plants for those 21 and older. In addition, medical marijuana treatment centers may begin selling recreational marijuana once the Cannabis Control Commission adopts regulations (which must occur by September 15, 2017) or on January 1, 2018 if the Commission fails to adopt such regulations.

The portion of the new law relating to marijuana use and possession goes into effect on December 15, 2016.

The impact on employers?

The new law does not change an employer’s ability to have policies prohibiting the use of marijuana by employee and applicants. The new law also does not require employers to permit or accommodate the use of marijuana in the workplace, or prevent employers from complying with state or federal law.

As a result, Massachusetts employers are still permitted to prohibit employees from smoking pot in the workplace and/or from coming to work under the influence of marijuana. In addition, pre-employment drug testing and reasonable suspicion drug testing for marijuana use remain lawful. However, employers should remember that current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Massachusetts’ Transgender Restroom Law Now in effect

In an earlier article, “Accommodating Transgender Individuals Is Now The Law In Massachusetts”, we reported that Massachusetts has passed Senate Bill 735 into law. This law sets forth new protections for transgender individuals living (and working) in Massachusetts and specifically addressed a transgender individual’s “restroom” rights.

Under the new law, transgender individuals must be permitted to use restrooms, changing rooms, and locker rooms that match their gender identities rather than their sex assigned at birth. In addition, it prohibits advertising that discriminates on the basis of gender identity and protects transgender individuals from discrimination in places of public accommodation.

This law went into effect on October 1, 2016 and all Massachusetts employers must be prepared to allow both transgender employees and patrons to use the restroom of their choosing.

Is your state contemplating the legalization of marijuana?

Presidential election aside, there is something else equally important to employers on certain electoral ballots. Eight states are contemplating legalizing marijuana either for medicinal purposes or for recreational purposes. Is your state one of the eight who are contemplating this change?

Medical Marijuana Laws

Currently 25 states and DC have laws legalizing the use of marijuana for medicinal purposes. On November 2, 2016, 3 more states will be subjecting their proposed medical marijuana laws to popular vote. Those states are: Arkansas, Florida, and North Dakota.

Should these laws pass, here is how they could impact employers:

  • Arkansas
    • Employers cannot deny a “qualifying patient” “any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for medical use of cannabis in accordance with [the law].”
    • Employers cannot discriminate against a “qualifying patient” “in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient.”
    • Employers will not be required to
      • accommodate the use of marijuana in the workplace
      • permit an employee to work while under the influence of marijuana.
  • Florida
    • Employers will not be required to permit the use of marijuana in the workplace
  • North Dakota
    • Employers will not be required to permit the use of marijuana in the workplace

Recreational Marijuana

In addition, four states and the District of Columbia have legalized marijuana for recreational use. On November 2, 2016, 5 more states will be subjecting their proposed medical marijuana laws to popular vote. Those states are: Arizona, California, Maine, Massachusetts, and Nevada.

Should these laws pass, here is how they could impact employers:

  • Arizona
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
    • However, an employer cannot discipline an employee for an action solely because the employee tests positive for marijuana in a drug test
  • California
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees and drug free workplace policies
  • Maine
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
    • However, employers cannot refuse to hire someone solely because that person used marijuana
  • Massachusetts
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
  • Nevada
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees

Employers in these states should watch the election results carefully and be prepared to make some alterations to their drug policies to ensure they are compliant with any new laws that might be passed.

DOL Partnership regarding worker misclassification — 34 States and Counting

Thirty-five states have agreed to “team up” with the US Department of Labor to investigate worker misclassification. Is your state one of them?

In 2015, Department of Labor launched an initiative to combat the misclassification of employees as independent contractors. As a part of this initiative, the Department of Labor sought to partner with the state agencies and agree to share information and conduct joint investigations regarding independent contractor misclassification. To date, 35 states have entered into a memorandum of understanding regarding worker misclassification issues.

These states are:

  • Alabama
  • Alaska
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Florida
  • Hawaii
  • Idaho
  • Illinois
  • Iowa
  • Kentucky
  • Louisiana
  • Maryland
  • Massachusetts
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • New Mexico
  • New York
  • North Carolina
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Dakota
  • Texas
  • Utah
  • Vermont
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

What does this mean for employers in these states?

Employers in the above-listed states should expect collaborative efforts between their state agencies and the Department of Labor during a investigation into potential employee misclassification as the state and the Department of Labor will share information. This could lead to simultaneous, multi-agency investigations into worker classification. It is recommended that companies have qualified legal counsel review any existing independent contractor arrangements. In addition, before entering into an independent contractor relationship, speak with an HR Professional or qualified legal counsel to verify that the worker truly is an independent contractor.

New Protections for Veterans in Massachusetts

On July 14, 2016, Massachusetts Governor Charlie Baker signed “An Act Relative to Housing, Operations, Military Service, and Enrichment” (“The HOME Act”). This law requires employers to provide paid leave to veterans participating in Veterans Day activities. It also prohibits employers from discriminating against individuals based on their veteran status.

What is a veteran?

Under the new law, a veteran is

  1. Any person with an honorable discharge who served in any branch of the U.S. military,
  2. Any person who served full time in the National Guard under certain conditions,
  3. Any person who served in wartime and was awarded a service-connected disability or Purple Heart.

What are the Veterans Day Leave benefits?

Massachusetts law already required employers to grant a paid or unpaid leave of absence to qualifying veterans who wished to participate in a Veterans Day or Memorial Day exercise, parade, or service. Under the new law, Massachusetts employers with 50 or more employees are required to grant a veteran paid leave on Veterans Day provided that the employee provides reasonable notice of his/her intention to take leave for that purpose. The new law does not require employers to provide paid leave for Veterans on Memorial Day.

Veterans as a protected class

Under the new law, an employee’s “veteran status” is included as a protected class under the Massachusetts Fair Employment Practices Act.