Paid Family Medical Leave (PFML) and the Duty to Bargain

Issue March/April 2021 April 2021 By Summar C. Sparks
Labor & Employment Law Section Review
Article Picture
Summar C. Sparks

Beginning Jan. 1, 2021, eligible workers gained access to some of the benefits available to them under the Massachusetts Paid Family and Medical Leave (PFML) law. As workers begin to use this new statutory benefit, both private employers and workers are bound to have questions regarding the administration of this program. In unionized workplaces, employers and workers have an additional resource for resolving issues arising from the implementation of PFML: the union.

Bargaining with the union over these issues is both a resource and an obligation. Employers have a duty to bargain collectively over wages, hours, and terms and conditions of employment. In the context of PFML, this means that employers have a duty to bargain over PFML’s impact on existing benefits as well as program administration. Absent language in a collective bargaining agreement recognizing an employer’s right to act, an employer may not make unilateral changes to workers’ existing benefits without first providing the union with reasonable notice and an opportunity to bargain. Further, an employer may not unilaterally impose aspects of the program that the law merely allows but does not require; for instance, an employer may not unilaterally impose the fitness for duty examinations permitted under PFML. This means that employers must negotiate with the union regarding some of the issues arising from the implementation of PFML. While the employer has a duty to bargain with the union over some of these issues, collective bargaining provides a valuable opportunity to collaboratively evaluate how to best administer this new benefit in the context of a specific workplace.

An Overview of the Benefit

The PFML provides eligible workers with the following types of paid leave: (1) 12 weeks of family leave to either care for a family member with a serious health condition or bond with a child following the child’s birth, adoption or foster care placement; (2) 20 weeks of medical leave to address the employee’s own serious health condition; (3) 26 weeks of family leave to care for a family member who is a covered servicemember; and (4) 12 weeks of family leave when a family member is on active military duty or notified of an impending call to duty. The total amount of leave is capped at 26 weeks per benefit year, which is the 52 consecutive week period beginning the Sunday before the first day PFML is used by the employee. Leave entitlements are prorated for part-time employees, and leave may also be taken intermittently.

A worker’s weekly benefit amount depends on the worker’s average weekly earnings, but is currently capped at $850 per week. More specifically, the portion of a worker’s average weekly wage that is equal to or less than 50% of the state’s average weekly wage is replaced at 80%, and the portion of a worker’s average weekly wage that is more than 50% of the state’s average weekly wage is replaced at 50%.

Some Examples of Issues to Address During Bargaining

As the name implies, PFML involves two benefits: pay and leave. Under PFML, a worker cannot aggregate compensation payments from most sources. In other words, a worker’s weekly PFML payment will be reduced by wages, wage replacements, workers’ compensation, unemployment benefits or other such compensation. Because the law mandates that PFML payments be offset by existing wage replacements, it is unlikely that employers and unions will have much room for bargaining over this aspect of the new program. However, the manner in which PFML leave intersects with existing leave benefits as well as many aspects of PFML program administration is likely to raise issues involving mandatory subjects of bargaining.

While the PFML law generally permits this leave to be taken simultaneously with leave available under other programs, such as the Family and Medical Leave Act (FMLA), Massachusetts Parental Leave Act, and the Massachusetts Earned Sick Time Law, the administration of the PFML and those other programs must typically be aligned for this to occur. For example, the PFML statute does not permit employers to require workers to exhaust discretionary leave, such as sick, vacation or personal time, before accessing this new benefit, which means that an employer who requires discretionary leave to be exhausted before a worker accesses FMLA could not attribute an employee’s leave to both PFML and FMLA without altering the administration of FMLA. Such an alteration to an existing benefit program would be a mandatory subject of bargaining and would require the employer to bargain with the union.

Similarly, FMLA provides three options for calculating a benefit year, yet PFML only provides one definition of a benefit year. Depending on the definition of a benefit year an employer adopted for FMLA, it is possible for workers to have exhausted FMLA leave without yet using any PFML. This means that some employers will be incentivized to alter their FMLA benefit year calculation, and unions will want to carefully evaluate how different benefit year definitions impact the availability of benefits in various situations. Again, such a change to an existing benefit program would be a mandatory subject of bargaining.

In addition to bargaining over changes to existing benefits prompted by the implementation of PFML, employers and unions will want to address how this new program will be administered. For instance, if a worker uses PFML to address the worker’s own serious health condition, the employer can require the worker to prove that they are fit to return to work. If a fitness for duty evaluation process has not already been bargained between the parties for employees returning from medical leaves, the union and employer must engage in that bargaining before such a process is implemented; fitness for duty evaluations are a mandatory subject of bargaining.

PFML is likely to prompt employers to pursue changes to the status quo involving mandatory subjects of bargaining. More specifically, in the case of the PFML, unions and employers should bargain over how this new benefit impacts workers’ access to existing employer-provided benefits as well as the administration of the program. Since the PFML program is new, unions and employers should keep the lines of communication open to ensure that the benefit serves the needs of employees and employers alike.

Summar C. Sparks, Esq.
, an associate at McDonald Lamond Canzoneri, focuses her practice on the representation of labor unions in all aspects of union functions. She is a recent graduate of Boston University Law School, where she served as a note editor for the
Public Interest Law Journal.