The following is a summary of several key provisions of the new paid family and medical leave law. It is not intended to cover all aspects of the new law. This law is mandatory for all private sector employers effective January 1, 2019. Because it is a local option statute, public employers will not be subject to the law unless and until accepted by vote of the local legislative or governing body. Please note that certain provisions of the law go into effect on January 1, 2019, while other provisions go into effect on later dates through 2021. We will continue to publish updates on this topic once regulations are promulgated and as the various provisions of the law go into effect.

What the law does

Chapter 121 of the Acts of 2018 (“the law”) establishes a paid family and medical leave program in Massachusetts. Beginning January 1, 2021, Massachusetts employees will be able to take paid medical leave for their own serious health condition as well as paid family leave to bond with their child during the first 12 months after the child’s birth (or placement through the adoption/foster care process). Beginning July 1, 2021, employees will be able to take paid family leave to care for a family member with a serious health condition. The law also provides paid family and medical leave for employees who are in the armed forces or who have family members in the armed forces.

Employees will be entitled to take up to 12 weeks of paid family leave in a year and up to 20 weeks of paid medical leave in a year; however, the total amount of leave an employee may take in any given year (for family and medical leave combined) will be limited to 26 weeks. While on leave, employees will be paid a “weekly benefit amount” determined by the new Department of Family and Medical Leave.

Who the law affects

Like the 2015 earned sick time law, the new family and medical leave law is a local option statute. It automatically applies to all private employers in Massachusetts, but it will not apply to any municipality, district, political subdivision, or instrumentality of the commonwealth unless adopted by vote of the local legislative or governing body.

Public employers in municipalities that do not accept the law will continue to be subject to the provisions of the federal Family and Medical Leave Act (“FMLA”) and any existing medical/family/disability leave policies and collectively bargained agreements.

How the law works

The law establishes a new Department of Family and Medical Leave (“the department”). Beginning July 1, 2019, the department will begin to collect contributions from employees and employers with 25 or more employees. The Director of the department will set the contribution rate annually and contributions will be placed in the new “Family and Employment Security Trust Fund.” The Fund will be administered by the treasurer and receiver general.

In January 2021, when the leave entitlements begin to take effect, the department will be responsible for administering leave payments through a claims system.

The law requires employees to provide employers with at least 30 days’ notice of the anticipated start date of the leave, the expected duration of the leave, and the expected return-to-work date. While the department will handle the claims process, employers will be responsible for supplying information to the department such as information regarding an employee’s wages, earnings, and other employment information. Employers will face potential financial liability for failure to timely supply such information to the department.

Upon their return from leave, employees must be restored to the same status, pay, benefits, and seniority that they had when the leave began. The law prohibits retaliation by an employer against an employee for exercising their rights under the law. There will be a presumption of retaliation if an employer takes any adverse action against an employee during the employee’s leave or within six months after an employee returns from leave. The law also establishes a private right of action for violations of the law with a three-year statute of limitations. Employers found to have violated the law may be liable for treble damages for lost wages, benefits, and other remuneration, plus interest and attorneys’ fees.

Rolling Implementation

Even though many of the key provisions of the law do not go into effect until 2021, some provisions – such as the law’s posting and notice requirements – take effect on January 1, 2019.

Beginning January 1, 2019, employers will be required to post information about the law in a conspicuous place at each of the employer’s locations. Employers will also have 30 days to provide existing and new employees with written information about the law and obtain each employee’s written acknowledgment of receipt or refusal. Failure to adhere to the posting and notice requirements will subject employers to a fine of $50 per employee for the first violation and $300 per employee for each subsequent violation.

Additional aspects of the law take effect between 2019 and 2021. We will continue to post updates and reminders to our clients as these additional changes draw closer.

Interaction with Other Leaves

Massachusetts family and medical leave can run concurrently with parental leave and FMLA. Employers will not be permitted to require employees to exhaust their sick, vacation, or personal time prior to or while taking leave. If an employee’s collective bargaining agreement provides for greater payment than the statute, the employer will be required to pay the higher amount, although the time spent out on leave will still count against the statutory leave entitlement.

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

As pointed out in our June 27, 2018 Client Advisory, the Supreme Court released its decision yesterday in Janus v. AFSCME, Council 31, U.S. No. 16-466 (2018), which held that a state statute which allows public sector unions to charge non-member employees an agency service fee for activities connected with their collective bargaining activities as exclusive representative violates the First Amendment rights of those non-members. In our advisory we stated that we would provide further analysis because Massachusetts has a statute – G.L. c. 150E, §2 – which contains a requirement similar to that in the Illinois statute which was invalidated by the Court.

Two significant issues for Massachusetts employers are raised by the Janus decision. First, many employers have been making deductions for service fees from the paychecks of employees who may not be members of any of the unions which represent its employees. Second, many of those same employers are parties to collective bargaining agreements which may have provisions premised on the Massachusetts statute.

In its opinion the Court requires that employees “clearly and affirmatively consent” before service fees may be deducted from their pay because they are waiving their First Amendment right.  Slip Op. at 48. This means that an employer must assure itself of two things – (1) that each employee has consented in writing to a deduction for service fees and (2) that the consent is obtained in a manner which reasonably informs the employee that it is voluntary. In cooperation with its bargaining units, the employer should therefore determine that these requirements are satisfied. Employers will also need to promptly revise payroll systems to reflect this decision.

Regarding collective bargaining provisions, the Court did not directly address those. The collective bargaining agreement involved in Janus did, however, require payment of a service fee, slip op. at 5; the Court stated its holding in broad terms – “public-sector agency-fee arrangements are unconstitutional”, id. at 6 [emphasis added]; and it referred to a collective bargaining provision which “is found to be unlawful”, id. at 46. Given this, employers should review their agreements for language which may have to be revised through discussions with their unions. In our opinion these changes should not be subject to decision or impact bargaining requirements because they do not involve the employer’s choice to exercise a non-delegable managerial right. Instead, the Court has given employers no option by deciding that such arrangements violate the law regarding employees’ First Amendment rights.

The Court indicated that unions may have options to avoid so-called “free rider” abuses, specifically mentioning the possibility of giving non-members the choice of paying a fee for union representation in disciplinary proceedings or being denied the service. Slip Op. at 17. That sort of arrangement is between the union and the employee and should not directly involve the employer.

These issues need to be worked through carefully. We are reviewing the collective bargaining agreements between our clients and their unions to determine which may need revision. In addition, we are preparing a draft template for employees to sign when indicating their decision whether or not to authorize payroll deductions for dues or service fees.  The template can be discussed with the respective unions.

In the interim, if you have any questions please contact any one of our attorneys.

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

 

On June 5, 2018, a Middlesex Superior Court judge issued an order enjoining the Natick School Committee from enforcing its public speak policy during meetings. While this order is not a final decision in the case and is binding only on the parties to that lawsuit, it may carry significance for other districts which have in place similar public comment rules for School Committee meetings.

The lawsuit was brought by parents of two unrelated former Natick students. They alleged that the Committee, its chair, and the interim Superintendent unconstitutionally restricted their speech during the “public speak” portion of Committee meetings. The plaintiffs requested, among other things, a preliminary injunction to prevent the school committee from enforcing its public speak policy and an order declaring that the school committee’s policy is unconstitutional.

The Committee’s policy bans (1) “improper” conduct and “defamatory” or “abusive” remarks and (2) complaints about individual school personnel or any member of the school community during the public speak period. These provisions are identical to the MASC model policy BEDH. The Committee invoked the policy during a January 2018 meeting, when one parent made comments during public speak that her child had been bullied. The Committee suspended the meeting and had the parent removed, later issuing her a no trespass order prohibiting her from attending the area where Committee meetings are held. The Committee later invoked the policy against the second parent in February and March 2018, after she commented during public speak that Natick Public Schools had created a retaliatory and hostile climate. The Committee then amended its policy to bar “vulgar language and ideas” and to authorize the Chair to stop a speaker if he/she becomes “disruptive as defined by the chair.”

The court applied the standard test to evaluate the plaintiffs’ request for an injunction, focusing on the most important, i.e., a likelihood of success on the merits. Under applicable First Amendment precedent (which the court applied to the plaintiffs’ claim under the cognate Massachusetts Declaration of Rights provision, Article 16), public bodies may establish “limited public forums,” which may be dedicated solely to the discussion of certain subjects. The court stated that the body may always impose “reasonable” rules which are “viewpoint neutral” for limited public forums. If, however, the rules are based on the content of the speech, they can only be upheld if they further a “compelling interest” and are “narrowly tailored” to serve that interest.

The court recognized that school committees have a compelling interest in protecting student and staff privacy, as well as in conducting orderly and efficient meetings. However, the court found that the committee’s policy actually restricted speech based on the viewpoint of the speaker and was “aimed to prohibit certain speech that is critical of the Natick Public Schools.” The policy’s prohibitions on improper, vulgar, and disruptive remarks vested too much discretion in the chair to silence speakers based on the particular views they expressed. Thus, the policy was overbroad. The court also noted that well-established case law in Massachusetts would invalidate the portion of the policy prohibiting “defamation” during public speak.

The Committee had argued that the Open Meeting Law gives public body chairs the authority to prohibit meeting disruptions, and that such authority was properly exercised in the case. The court disagreed, calling into question the possibility that the exercise of such authority might conflict with speakers’ state and federal free speech rights. The court made an interesting distinction between the portion of a meeting devoted to agenda items and the portion devoted to public speak. During discussion on agenda items, the chair can exercise authority over the meeting to prohibit a speaker from straying off topic or otherwise disturbing the order and efficiency of the meeting. The chair’s authority during the public comment portion, on the other hand, is far more limited. In other words, speech that is “disruptive” during discussion of agenda items is not necessarily “disruptive” during public speak. In this case, because the plaintiffs’ speech was school-related and delivered “in a calm manner” during public speak, the court found that it was not “disruptive”. Therefore, the chair did not have authority under the Open Meeting Law to restrict the speech.

Having found a likelihood of success, the court briefly assessed the other required elements for a preliminary injunction and ruled that they were satisfied. In its injunction order, however, the court recognized the sensitive nature of subject matters which might be discussed at Committee meetings and the need to protect the privacy of students and staff. The court therefore included an exception which bars naming or “otherwise identifying” individual staff or students during the public speak portion of meetings. It also stated that this exception is “for the purposes of temporary injunctive relief only.” Unfortunately, the court failed to expound on the precise meaning or parameters of this exception.

Although the court’s order is not “final” a provision in the General Laws authorizes an appeal to the Appeals Court from an interlocutory order granting an injunction, which would have to be filed within 30 days. Since the order has just been entered, we have no information as to whether the Committee intends to appeal. Given that the court’s analysis may have collateral consequences regarding standard public speak policies used by school committees and other municipal boards across the Commonwealth, we intend to monitor this case closely.

If you have questions about this decision, 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.

Today, in Stahr v. Lincoln Sudbury Reg’l High Sch. Dist., the Massachusetts Appeals Court affirmed the dismissal of a former student-athlete’s claims against the Lincoln Sudbury Regional High School District for injuries sustained during a varsity field hockey practice. The court dismissed the claims based on its determination that they fit the exception in § 10(j) of the Massachusetts Tort Claims Act, G.L. c. 258 (the “Act”). The outcome in this case highlights the limits of public employer liability under the Massachusetts Tort Claims Act, particularly where the public employer is not the direct cause of the injury. It also serves to remind school districts of the importance of implementing and adhering to proper concussion protocols as required under G.L. c. 111, § 222, and 105 C.M.R. 201.00.

Massachusetts Tort Claims Act

Under the Act, public employers – including school districts – may be held liable for injuries caused by the negligent or wrongful acts or omissions of a public employee acting within the scope of their employment. Despite the general rule, there are several exceptions in the Act that shield public employers from liability in certain situations.

Under one common exception, a district generally can’t be held liable for its actions (or lack of action) to prevent or diminish the consequences of a harmful condition or situation where the district did not “originally cause” the harmful condition or situation. See G.L. c. 258, § 10(j). This exception often comes into play when an injury is caused by a third party, such as another student. The question then becomes whether the district “originally caused” the condition or situation that led to the injury.

When does a school district “originally cause” a condition or situation?

Under Supreme Judicial Court precedent, the district has to take some “affirmative action” that “materially” contributes to creating the harmful condition or situation. See Cormier v. Lynn, 479 Mass. 35 (2018). The courts won’t hold a district liable if its action is too attenuated or if the district simply failed to prevent a harmful situation from arising.

The Stahr Case

In Stahr, the Lincoln Sudbury girls’ varsity field hockey team participated in a practice drill introduced and supervised by an alumna player acting as a volunteer coach. The players were not warned or instructed as to techniques that could endanger other players prior to the drill. During the drill, a student was struck in the face by a teammate’s field hockey stick. The head varsity coach was present on the field but was not actively supervising at the time. The blow knocked out two of the student’s teeth, caused her to lose consciousness, and resulted in a concussion.

The student’s family argued that the head coach’s decision to allow an untrained volunteer coach to supervise a new drill was the “original cause” of the student’s injury. The court disagreed, finding that the head coach’s decision was too attenuated from the actual collision that directly caused the injury. The court also refused to hold the district liable for the coaches’ alleged “lack of supervision” and “inadequate instruction” prior to the drill. Both were omissions, not affirmative acts. As such, the court likened the student’s claim to “an attempt to hold the [district] liable for failing to ensure [the student’s] safety during field hockey practice.”

The family also argued that the district was negligent in its failure to implement and follow a concussion protocol as required by G.L. c. 111, § 222, and 105 C.M.R. 201.00. After the impact, the head coach failed to take any steps to mitigate the effects of a possible concussion and did not notify the student’s parents of the proper protocol to follow in the event of a suspected concussion. The student did not receive her concussion diagnosis until five days later. Upon her return to school, she was not placed on a graduated reentry plan and her academic performance suffered over an extended period of time. She ultimately withdrew from the district.

The court held that the district could not be held liable for its failure to implement and adhere to proper concussion protocols as required by Massachusetts law. Because the failure was an omission, as opposed to an “affirmative act,” it could not be considered the “original cause” of the injury. Similarly, because the failure was an omission, it could not be classified as a “negligent intervention.”

Massachusetts Interscholastic Athletic Head Injury Law

Even though the school district could not be held liable in this case, the facts demonstrate why it is imperative that schools comply with the requirements set forth in the G.L. c. 111, § 222, and its implementing regulations located at 105 C.M.R. 201.00.

The regulations require all schools to have policies and procedures in place governing the prevention and management of sports-related head injuries. Such policies must have provisions including, but not limited to:

1. annual training in the prevention and recognition of sports-related head injuries;
2. instructions to coaches, athletic trainers, and volunteers to teach form, techniques, and skills and promote protective equipment use to minimize sports-related head injury;
3. procedures for reporting head injuries or suspected concussions sustained during extra-curricular athletic activities to the school nurse and licensed athletic trainer;
4. procedures for identifying a head injury or suspected concussion, removing an athlete from practice or competition, and referring for medical evaluation; and
5. procedures for the development and implementation of post-concussion graduated reentry plans to school and academic activities.

See 105 C.M.R. 201.006(A). If you have any questions about these requirements, 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.