Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2605 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	SENATE . . . . . . . . . . . . . . No. 2605
2	2	The Commonwealth of Massachusetts
3	3	_______________
4	4	In the One Hundred and Ninety-Third General Court
5	5	(2023-2024)
6	6	_______________
7	7	SENATE, March 4, 2024.
8	8	The committee on Labor and Workforce Development, to whom was referred the
9	9	petitions (accompanied by bill, Senate, No. 1197) of Jason M. Lewis, Rebecca L. Rausch, Jack
10	10	Patrick Lewis, Michael D. Brady and other members of the General Court for legislation to
11	11	improve the Massachusetts paid family medical leave law; (accompanied by bill, Senate, No.
12	12	1198) of Jason M. Lewis, Lydia Edwards, James B. Eldridge and Paul R. Feeney for legislation
13	13	to amend the Massachusetts Paid Family Medical Leave law definitions of a covered business
14	14	entity and a covered contract worker; (accompanied by bill, House, No. 1858) of Josh S. Cutler
15	15	and others relative to the publication of hearing decisions by the Department of Family and
16	16	Medical Leave; (accompanied by bill, House, No. 1859) of Josh S. Cutler and others relative to
17	17	data reporting by the Department of Family and Medical Leave; (accompanied by bill, House,
18	18	No. 1860) of Josh S. Cutler and others for legislation to include bone marrow and organ donation
19	19	in the paid family and medical leave program; (accompanied by bill, House, No. 1888) of
20	20	Kenneth I. Gordon and others relative to the Massachusetts Paid Family Medical Leave Law;
21	21	(accompanied by bill, House, No. 1889) of Kenneth I. Gordon and others relative to the
22	22	definitions of covered business entity and covered contract worker under the Massachusetts Paid
23	23	Family Medical Leave Law; and (accompanied by bill, House, No. 1942) of Jeffrey N. Roy
24	24	relative to unemployment benefits for replacement workers, report the accompanying bill
25	25	(Senate, No. 2605).
26	26	For the committee,
27	27	Patricia D. Jehlen 1 of 11
28	28	FILED ON: 2/6/2024
29	29	SENATE . . . . . . . . . . . . . . No. 2605
30	30	The Commonwealth of Massachusetts
31	31	_______________
32	32	In the One Hundred and Ninety-Third General Court
33	33	(2023-2024)
34	34	_______________
35	35	An Act improving the Massachusetts paid family medical leave law.
36	36	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
37	37	of the same, as follows:
38	38	1 SECTION 1. The General Laws, as appearing in the 2022 edition are hereby amended by
39	39	2adding, after Chapter 23M, the following new section:
40	40	3 Chapter 23N.
41	41	4 Section 1. (a) There is hereby established an advisory council on paid family and medical
42	42	5leave in this chapter and in chapter one hundred and seventy-five M, called the advisory council,
43	43	6with members to be appointed by the Governor. The voting membership of said council shall be
44	44	7composed of nine members in total with four members representing employers and providers of
45	45	8paid family and medical leave in the commonwealth, at least one of whom shall represent
46	46	9manufacturing classifications, at least one of whom shall represent the retail industry, at least one
47	47	10of whom shall represent contracting classifications, and one of whom shall represent the staffing
48	48	11industry and four members representing employees, at least one of whom shall represent a
49	49	12private sector union, one of whom shall represent a public sector union, one of whom shall
50	50	13represent a community based organization, and one of whom shall have knowledge and 2 of 11
51	51	14experience with the temporary disability insurance system”. The Governor shall also appoint one
52	52	15member representing the public provided the public member has appropriate knowledge and
53	53	16familiarity with paid family and medical leave law and practices in the workplace.
54	54	17 The Governor shall also appoint one member representing the temporary disability
55	55	18insurance industry, 2 attorneys specializing in employment and/or labor law, with one having a
56	56	19practice representing employees and one having a practice representing employers, and one
57	57	20member who is self-employed, none of whom shall be voting members.
58	58	21 The secretary of labor and workforce development and the secretary of housing and
59	59	22economic development shall be ex officio, nonvoting members. Any person appointed to fill a
60	60	23vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the
61	61	24unexpired portion of such term.
62	62	25 (b) In appointing initial members to the Advisory Council, the Governor shall appoint
63	63	26one employer and one employee member for a period of two years, one from each group for a
64	64	27period of three years, one from each group for a period of four years and one for each group for a
65	65	28period of five years. The two public members shall be appointed for a period of three years.
66	66	29After the initial appointment, each appointee shall be eligible to be reappointed for one term of
67	67	30five years. Members shall be eligible for no more than an initial appointment and one
68	68	31reappointment. In appointing council members, the Governor must seek to appoint members
69	69	32reflecting the widest representational diversity possible consistent with the demographics of the
70	70	33commonwealth.
71	71	34 Seven members shall constitute a quorum for purposes of holding a meeting and voting.
72	72	35No formal action or position shall be taken by the council without the affirmative vote of at least 3 of 11
73	73	36seven members. All members of the advisory council shall serve without compensation and at
74	74	37the pleasure of the Governor. The advisory council shall meet no less than quarterly during each
75	75	38calendar year.
76	76	39 Meetings of the advisory council shall be called by the chair or upon written petition by a
77	77	40majority of voting members. Such meetings shall be subject to section 11A1/2 of chapter 30A.
78	78	41The secretary of labor and workforce development or designee, the chair of the commonwealth
79	79	42employment relations board, and the director of the department shall serve as ex-officio non-
80	80	43voting members of the advisory council.
81	81	44 Extraordinary meetings of said advisory council may also be called by the chairman and
82	82	45vice chairman, jointly or upon petition by a majority of voting members. Such meetings shall be
83	83	46subject to the provisions of section 11 1/2 of chapter 30A. Said advisory council shall take no
84	84	47action pursuant to its authority under this chapter or said chapter one hundred and seventy-five
85	85	48unless a quorum of its voting members is present.
86	86	49 Meetings may be held more frequently at the joint request of the chair and vice chair of
87	87	50the council, provided they give all members at least 30 days notice of any extraordinary meeting
88	88	51and its purpose or of their intention to regularly hold meetings more frequently.
89	89	52 (c) The governor shall, from time to time, designate one of the council members as chair
90	90	53of the advisory council. The chair shall serve for no more than 2 years, and the position shall
91	91	54rotate among employee, employer, and public members. No member of the advisory council
92	92	55shall be subject to chapter 31. Such appointees shall not succeed themselves as chairman or vice-
93	93	56chairman. 4 of 11
94	94	57 Members shall receive their traveling and other necessary expenses incurred in the
95	95	58performance of their duties.
96	96	59 Section 2. The advisory council shall appoint such personnel as are reasonable and
97	97	60necessary for the proper discharge of its duties, subject to the approval of the secretary of labor
98	98	61and workforce development. The staff of the advisory council shall be funded from
99	99	62administrative cost monies collected for the Family and Employment Security Trust Fund in
100	100	63accordance with the provisions of section 7 of said chapter one hundred and seventy-five M. The
101	101	64advisory council may expend for personnel and office expenses funds appropriated to the
102	102	65department for that purpose.
103	103	66 The director shall provide for the advisory council suitable meeting space and such
104	104	67clerical and other administrative assistance as the director and the council may deem necessary.
105	105	68 Section 3. The advisory council shall monitor, recommend, give testimony, and report on
106	106	69all aspects of the Paid Family and Medical Leave system, except for the adjudication of
107	107	70particular claims or complaints. Its powers include the issuance of reports, recommendations for
108	108	71legislation, policies and programs, the conducting of research, the collecting of data from public
109	109	72and private sources, and powers granted under the provisions of chapter one hundred and
110	110	73seventy-five M to oversee the operation and implementation of the law.
111	111	74 The advisory council shall report at least annually in writing by no later than 90 days
112	112	75following the last day of the fiscal year of the commonwealth to the secretary of labor and
113	113	76workforce development on the state of the Paid Family and Medical Leave system, and shall
114	114	77cause a copy of such report to be filed with the clerks of the house and senate of the general court
115	115	78who shall send copies of such report to the joint committee on labor and workforce development 5 of 11
116	116	79and the house and senate committees on ways and means. The report shall include an evaluation
117	117	80of the operations of the department, and of the experience and financial condition of the Family
118	118	81and Employment Security Trust Fund, along with recommendations for improving the paid
119	119	82family and medical leave system.
120	120	83 Said advisory council shall also review the annual operating budget of the department, as
121	121	84prepared by the director and as submitted to the secretary of labor and workforce development.
122	122	85Upon the affirmative vote of at least seven voting members, the advisory council may submit its
123	123	86own recommendation for the total operating budget to the secretary of labor and workforce
124	124	87development.
125	125	88 The agency shall cooperate fully with all reasonable written requests for information and
126	126	89documentation from the advisory council requested in pursuit of its established duties.
127	127	90 No later than five years after the establishment of the advisory council, it shall make an
128	128	91investigation and study as to the costs and benefits associated with the regulations implementing
129	129	92the insurance options pursuant to Section 11, to ensure completeness of coverage and
130	130	93competitiveness in pricing.
131	131	94 The advisory council may expend, for the legal, actuarial, research, clerical, and other
132	132	95expenses involved in the completion of such investigations and studies, such sums as may be
133	133	96appropriated therefor subject to the administrative oversight of the Executive Office of Labor
134	134	97and Workforce Development.
135	135	98 Said council shall file the results of its investigations and studies, and its
136	136	99recommendations, if any, together with any drafts of legislation necessary to carry its 6 of 11
137	137	100recommendations into effect with the governor and with the clerks of the house and senate of the
138	138	101general court at the end of each fiscal year.
139	139	102 Section 4. Upon the creation of formal appeal and review process into an appeals board
140	140	103for resolving claims by the Department of Family and Medical Leave, the advisory council shall
141	141	104serve as the nominating panel for the appointment of any members to the appeals board. Before
142	142	105any submission of nominations for appointment or reappointment to the board of review by the
143	143	106Governor, the advisory council shall review applications for such nominations and consider the
144	144	107following factors:
145	145	108 (1) skills in fact-finding;
146	146	109 (2) demonstrated basic understanding of family and medical leave law and/or temporary
147	147	110disability law; and
148	148	111 (3) a bachelor's degree, advanced degree or demonstrated writing ability as evidenced by
149	149	112at least 4 years in positions in which writing skills are a major job responsibility.
150	150	113 Each review of an applicant shall be made based on the application, experience,
151	151	114education and training of the applicant, writing samples, in-person interviews, and any other
152	152	115information the panel may require. When the application is for reappointment, the panel shall
153	153	116review, in addition to any other information, the performance since the candidate's appointment
154	154	117including, but not limited to:
155	155	118 (1) three decisions written and selected by the applicant;
156	156	119 (2) where applicable, the total number of cases decided by the applicant heard by an
157	157	120appellate body, and the number of those cases which were remanded for further proceedings; 7 of 11
158	158	121 (3) any decisions of an appellate body which specifically reference the candidate's
159	159	122demeanor or temperament;
160	160	123 (4) at the discretion of the director, written complaints from organizations that appear
161	161	124before the appeals process, to the director regarding the candidate's demeanor or temperament;
162	162	125and
163	163	126 (5) evidence of any demonstrable bias against particular parties, organizations or
164	164	127attorneys.
165	165	128 The advisory council shall rate the candidate as highly qualified, qualified or unqualified.
166	166	129 If appropriate or requested, any information regarding a candidate compiled by the state
167	167	130advisory council or the director shall be forwarded to the governor prior to the Governor
168	168	131selecting an applicant.
169	169	132 SECTION 2. Section 1 of chapter 175M of the General Laws, as appearing in the 2020
170	170	133Official Edition, is hereby further amended by striking out, in line 26, the words “1099-MISC”
171	171	134and inserting in place thereof the following words:- 1099-NEC, or successor form,
172	172	135 SECTION 3. Said section 1 of chapter 175M, as so appearing, is hereby further amended
173	173	136by striking out, in line 30, the words “1099-MISC” and inserting in place thereof the following
174	174	137words:- 1099-NEC, or successor form,
175	175	138 SECTION 4. Subsection (a) of section 4 of chapter 175M, as so appearing, is hereby
176	176	139amended by inserting after the second paragraph the following paragraph:-
177	177	140 When an employee requests leave under this chapter, or when the employer acquires
178	178	141knowledge that an employee's leave may be for a qualifying reason under this chapter, the 8 of 11
179	179	142employer must notify the employee of the employee's eligibility to take paid leave under this
180	180	143chapter within five business days, absent extenuating circumstances, by giving the employee the
181	181	144appropriate leave certification form as designated by the department, in the primary language of
182	182	145the employee.
183	183	146 SECTION 5. Said subsection (a) of Section 4 of chapter 175M, as so appearing, is hereby
184	184	147amended by inserting after the third paragraph the following paragraph:-
185	185	148 When a covered contract worker requests leave under this chapter, or when the covered
186	186	149business entity acquires knowledge that a covered contractor worker’s leave may be for a
187	187	150qualifying reason under this chapter, the covered business entity must notify the worker of the
188	188	151worker’s eligibility to take leave under this chapter within five business days, absent extenuating
189	189	152circumstances, by giving the worker the appropriate leave certification form as designated by the
190	190	153department, in their primary language.
191	191	154 SECTION 6. Subsection (b) of section 7 of chapter 175M of the General Laws, as so
192	192	155appearing, is hereby amended by striking out the first sentence and inserting in place thereof the
193	193	156following sentence:-
194	194	157 The costs of administering the department under this chapter shall be paid from the trust
195	195	158fund and in each fiscal year shall not exceed 5 per cent of the amount remaining in the fund at
196	196	159the end of the previous fiscal year; provided that, regardless of the trust fund balance at the end
197	197	160of a fiscal year, in no fiscal year shall the amount available to the director for administering the
198	198	161department decrease by more than 5 per cent from the previous year 9 of 11
199	199	162 SECTION 7. Subsection (e) of section 7 of chapter 175M of the General Laws, as so
200	200	163appearing, is hereby amended by striking clause (vii) from the first sentence in the second
201	201	164paragraph in its entirety and inserting the following clause at the end of clause (vi), on line 92:-
202	202	165 (vii) overall claimant demographics by age, gender, race and ethnicity, primary language
203	203	166of applicant, geography, average weekly wage, occupation, employment type (full or part time or
204	204	167self-employed), and the type of leave taken;
205	205	168 And by striking the word “and” after the semicolon at the end of clause (xii), at line 100;
206	206	169 And by striking clause (xiii) in its entirety and inserting at the end of clause (xii), at line
207	207	170100, the following:-
208	208	171 (xiii) the number of cases remaining open at the close of such year; (xiv) the number of
209	209	172businesses and total workforce headcount enrolled, and the number of businesses and total
210	210	173workforce headcount covered by private plans; and (xv) the length of time between a covered
211	211	174individual’s first day of leave and their first payment of benefits. Data in (ii) through (vi), (xi),
212	212	175and (xv) shall be disaggregated by age, gender, race and ethnicity, primary language of applicant,
213	213	176geography, average weekly wage, occupation, employment type, and the type of leave taken.
214	214	177Data in (iii) and (vi) shall be further disaggregated by the relationship between the claimant and
215	215	178family member. Data in (vi) shall be further disaggregated by year of birth or placement.
216	216	179 SECTION . Said subsection (e) of section 7 of chapter 175M, as so appearing, is hereby
217	217	180further amended by inserting after the last sentence at the end of the second paragraph the
218	218	181following sentence:- 10 of 11
219	219	182 . The report shall also include details on the annual public education campaign conducted
220	220	183pursuant to subsection (f) of section 8 of this chapter, including, but not limited to, employer
221	221	184outreach efforts and materials, multilingual outreach materials and evidence of multimedia
222	222	185distribution.
223	223	186 SECTION 9. Said subsection (e) of section 7 of chapter 175M, as so appearing, is hereby
224	224	187further amended by inserting after the end of the second paragraph the following paragraph:-
225	225	188 The department shall establish a publicly accessible online dashboard using updated
226	226	189reporting information on the program. The information in the dashboard shall include: (i) total
227	227	190number of claims filed; (ii) total number of eligible claims; (iii) total number of claims denied;
228	228	191(iv) claimant demographics by age, gender, average weekly wage, occupation and the type of
229	229	192leave taken; and (v) average weekly benefit amount paid for all claims and by category of leave.
230	230	193The dashboard shall be updated no less than quarterly.
231	231	194 SECTION 10. Subsection (d) of section 8 of chapter 175M of the General Laws, as
232	232	195appearing in the 2022 Official Edition, is hereby amended by inserting after the word
233	233	196“defendant”, in line 50, the following sentence:-
234	234	197 . The department shall cause to be published all hearing decisions on their website,
235	235	198provided, however, that the department shall refrain from including, or partially redact where
236	236	199inclusion is necessary, any personal data identifiers, including, but not limited to, names, date of
237	237	200birth, names of minor children and any protected medical information
238	238	201 SECTION 11. Subsection (f) of section 8 of chapter 175M, as so appearing, is hereby
239	239	202amended by striking out, in line 60, the word “a” and inserting in place thereof the following
240	240	203words:- an annual 11 of 11
241	241	204 SECTION 12. Notwithstanding any special or general law to the contrary, if an
242	242	205employee, hired as a result of a covered individual taking leave under the provisions of chapter
243	243	206175M of the general laws, is subsequently separated from that employment when the covered
244	244	207individual is restored to that position, and is eligible for unemployment insurance benefits under
245	245	208the provisions of chapter 151A of the general laws, those benefit charges shall not accrue to the
246	246	209employer’s experience rating but rather shall be charged to the solvency fund.
247	247	210 SECTION 13. Not later than June 1, 2025, the department of family and medical leave
248	248	211shall report on the long-term financial stability of the Family and Employment Security Trust
249	249	212Fund, and review of existing policies under section 7 of chapter 175M, including the requirement
250	250	213that the trust fund shall maintain an annualized amount of not less than 140 per cent of the
251	251	214previous fiscal year's expenditures.