Several components of the Paid Family and Medical Leave (“PFML”) law[1] are going into effect beginning the end of this month.  As a reminder, employers must follow the timeline below to comply with the law:

• September 30, 2019 – Notify all covered individuals of their rights and obligations under PFML by posting the “Notice of Benefits Available Under M.G.L. Chapter 175M”. We have attached a copy of the required posting to this reminder.  Employers must also obtain written acknowledgement (paper or electronic) from each employee indicating that the employee has received notice.
• October 1, 2019 – Begin withholding PFML contributions from each employee’s qualifying earnings. Employers will be responsible for remitting employee and (if applicable) employer contributions for the quarter (October 1 to December 31) through MassTaxConnect by January 31, 2020.
• December 20, 2019 – No later than this date, employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions.

If you have questions or concerns about the PFML law, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

[1] If any part of your workforce is unionized, you may have a bargaining obligation over the new PFML law.  Please contact a VDH attorney if you have any unionized employees to discuss your potential bargaining obligation.

In a recent decision the United States District Court for the District of Massachusetts has ruled that a request by a full-time teacher to work part-time for medical reasons may constitute a reasonable accommodation under the federal and Massachusetts statutes which bar discrimination against an employee with a qualifying disability. In Incutto v. Newton Public Schools, et al., Civil Action No. 16-12385-LTS, the court denied the school district’s motion for summary judgment and held that the teacher had presented sufficient evidence to let a jury decide the case. The plaintiff was employed as a full-time kindergarten teacher but after being diagnosed with a qualifying medical condition had requested that she be assigned part-time teaching duties. The school district argued that because her position was full-time, an essential function of her job was attendance during the regular school-day hours of 8:20 AM to 3:30 PM Monday through Friday. The parties agreed that other than being present full-time the teacher could perform all the other required functions of her teaching position.

The court concluded that whether full-time attendance was an “essential function” would have to be decided after trial. It pointed to evidence in the record that for each of ten school years between three and seven elementary school teaching positions were job-shared by two teachers in the district and that in the three years before that the plaintiff herself had worked as a part-time teacher by job-sharing with others. Based on this the court held that the plaintiff had produced enough evidence to go before a jury on the question whether full-time presence was an “essential function” of her job and, therefore, whether her requested accommodation was unreasonable.

This case demonstrates how fact-specific is the inquiry which an employer must make when an employee requests an accommodation. Evidence as to whether the employer has imposed the same requirement on all similarly-situated employees will necessarily be relevant to making that determination.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

In June 2018 we reported that the Middlesex Superior Court had granted a preliminary injunction which enjoined the Natick School Committee from enforcing certain restrictions on public comment at school committee meetings which are set out in its public comment policy [see prior client advisory of 6-7-18]. On November 21, 2018 the court entered a ruling on the merits of the case, Spaulding, et al. v. Town of Natick School Committee, Civil Action No. 2018-01115. The court’s decision granted summary judgment in favor of the plaintiffs, who are the parents of two former (unrelated) students. They had claimed that the School Committee’s enforcement of its policy by restricting their statements during public comment sessions violated their right of free speech under Article 16 of the Massachusetts Declaration of Rights.

The court assessed their claim by applying rules under the analogous provision of the First Amendment to the United States Constitution. Concluding that the public comment session is a “designated public forum” for speech, the court evaluated Natick’s public comment policy.

1. The court first addressed that part of the policy which barred “personal complaints of school personnel nor against any member of the school community”. The court held that this limitation is permissible only to the extent that it covers complaints about employees who are not within the School Committee’s direct responsibility or about students. It held, however, that the policy is unconstitutional as it pertains to complaints about an employee within the Committee’s direct responsibility, such as the superintendent, or complaints about “school operations and programs” which are within the Committee’s purview. The court also ruled that the Committee could not prevent the speaker from identifying persons named in connection with permissible complaints.
2. With respect to the policy’s restriction of “criticisms” to those which are “objective”, the court held that the Committee could not preclude a speaker from making “subjective” comments if those comments “concern the speaker”.
3. In addition, the policy barred “defamatory” statements. The court held that this limitation was unconstitutional except as to remarks which already have been “adjudicated” defamatory.
4. As to the policy’s preclusion of comments which are “improper” or “abusive”, the court held that this is lawful only to the extent that the comments involve “threats”, “fighting words”, remarks “likely to provoke a violent reaction”, or “obscenities”. The court did point out that speakers can be barred from making statements “that they know to be false” and that the policy can also lawfully bar “improper conduct”.

This is a trial court decision which is binding only on the parties to the case. Nonetheless, because much of the content in Natick’s policy also appears in a model policy provided by MASC, the issues will likely be of import for many school districts. Among items left unaddressed by the court, and presumably lawful, is the school committee’s authority to prevent “disruption” of its meetings – with the important caveat that in its earlier injunction order the court had issued an admonition that this could not apply to speech that is “school-related” and is “delivered in a calm manner”. Moreover, the court was not asked to address time limits on speech during public comment. So long as these are reasonable and administered uniformly to all speakers without regard to subject matter or viewpoint, such limits should pass constitutional muster.

Technically part of the lawsuit remains pending, so the Natick School Committee is probably not yet able to appeal unless the trial court reports the case. We will continue monitoring the case to determine whether the appellate courts will become involved. In the interim, it may make sense for committees to review their public comment policies with an eye to this ruling.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.