Breaking News—Massachusetts DFML Clarifies That Businesses Do Not Have To Provide Written Notice To 1099 Contractors Where Such Contractors Make Up 50% Or Less Of Their Massachusetts Workforce

Seyfarth Synopsis: The Massachusetts Department of Family and Medical Leave (DFML) has clarified that employers are not required to provide their 1099-MISC contractors the written notice of Paid Family and Medical Leave (PFML) benefits and protections where such contractors make up 50% or less of their Massachusetts workforce. This is a welcome change from the DFML’s previous position.

Under the Massachusetts PFML Law, only employers with more than 50% of their Massachusetts workforce comprised of 1099-MISC contractors (“covered business entities”) are required to provide notice to contractors regarding PFML benefits and protections. However, despite the statutory language, the DFML’s previous online guidance stated that businesses needed to issue the mandatory written notice to all Massachusetts 1099-MISC contractors, even if the company fell under the 50% threshold. Further, the DFML’s template notice to self-employed 1099-MISC contractors included information for employers that were not covered business entities and their contractors. You can access the template notice here.

We raised this issue to the DFML in our written comments and during the May 24, 2019 public hearing on the proposed regulations. The DFML has since revised its online guidance on its website to state that employers that are not covered business entities are not required to send notice and collect acknowledgments from their Massachusetts 1099-MISC contractors. In its online guidance, the DFML, however, does encourage sending notice to these contractors so that these self-employed contractors become aware of their right to opt-in to the state PFML program.

This clarification is welcome news to employers whose 1099-MISC contractors make up a minority of their Massachusetts workforce and for which issuing notice to contractors and collecting acknowledgments would have posed a difficult endeavor.

On a separate note, we also wanted to share that the Associated Industries of Massachusetts (AIM), with whom we have partnered on a number of PFML-related efforts, recently asked State leaders to postpone the July 1 starting date of the PFML program by three months. AIM based its call for a delay on a growing concern that the marketplace, employers, and workers are not adequately prepared for the sweeping new benefits program. AIM is looking for support for its request to the Governor, Senate, and House.  You may join in supporting AIM’s request through this link.

For our prior reports on the PFML Law and the proposed regulations, you may refer here, here, here, here, here, and here.