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Update to Massachusetts Paid Family and Medical Leave

3/2/21

By: Janet Barringer and Lori Eller

The Massachusetts Department of Family and Medical Leave (“the Department”) has continued to update its guidance and resources on the Massachusetts Paid Family and Medical Leave Law (“PFML”), which went into effect at the beginning of 2021. It is important for employers to stay updated on this guidance and their requirements under the PFML.

As of January 1, 2021, most of the paid family and medical leave benefits are now available to Massachusetts workers. These paid benefits include:

  • Up to 20 weeks of paid medical leave to manage an employee’s own serious health condition;
  • Up to 12 weeks of paid family leave to bond with a child newly born, adopted, or placed in foster care, or to manage family affairs while a family member is on active duty overseas or has been notified of an impending call to active duty in the Armed Forces; and
  • Up to 26 weeks of paid family leave to care for a family member who is a covered Service Member with a serious health condition.

The remainder of paid family leave benefits, such as up to 12 weeks of paid leave benefits to care for a family member with a serious health condition, will become available on July 1 of this year. These benefits apply to employers of all sizes and can run concurrently with FMLA leave. The benefits are capped at 26 weeks total of leave in a single benefit year for covered individuals. More detail about the specific provisions of the PFML law can be found in our previous blog about the topic.

As a result of the PFML’s implementation, the Department has continually issued new guidance for employers and for workers. The Department has stated that PFML benefits run concurrently with any employer-provided PTO, sick time, or vacation time. Thus, if an employee uses a sick day for a situation where the reason for the sick day also qualifies for PFML benefits, that sick day will reduce the total PFML days available to that employee. Further, if an employee on leave receives short-term disability benefits or paid parental leave provided by an employer plan, and such plan states it runs concurrently with the PFML, then the worker can obtain both PFML benefits and also a “top off” amount from the employer. This total amount of the maximum PFML benefit per week, plus the employer’s “top off” amount, cannot exceed the employee’s average weekly salary. The Department additionally issued guidance on intermittent leave and reduced leave schedule. This includes setting minimum leave time increments, and a default if the employer sets no minimum.

Finally, employers are eligible for reimbursement for payments made to workers if they provide short term disability benefits or a paid family/medical leave program and participate in the PFML, and if the benefits are equal to or greater than what the employee would receive under the PFML. However, payments to workers for PTO, sick time, or vacation time that was either earned/accrued or under a private plan are not eligible for this reimbursement.

The Department has also updated the Mass.gov website with many helpful resources to employees and employers. These available resources include:

  • Guidance for employers on how to comply with the PFML law
  • A calculator to estimate the required contributions an employer will need to send to the DFML on behalf of their employees
  • A new workplace poster that must be displayed in the workplace
  • A fact sheet including frequently asked questions
  • Instructions on how to create an employer account to review PFML applications
  • Instructions on how employees can apply for PFML, and
  • The portal to apply for PFML.

The PFML also provides a useful option for employers to require an employee to provide a fitness-for-duty certification from a health care provider before they return from medical leave. This certificate is similar to that under the federal FMLA but, if desired by the employer, can be further tailored to address the employee’s specific job functions. An employer can require that this certificate specifically certify that the employee can now perform the listed essential functions of their job, so long as a list of those functions is provided to the employee within ten days of the employer’s notice of the Department’s approval of the employee’s medical leave. If that list of job functions is timely provided to the employee, the employee will not be entitled to reinstatement, nor to an extension of benefits, after the leave period without supplying this certification to the employer. This new tool is outlined in Section 2.11 of the PFML law.

Employers can determine whether the above certification is something it wants to implement into their leave and benefits processes. It is important for employers to review and integrate these new materials into their handbooks and policies, and to make employees aware of the PFML by posting the new mandatory poster in the workplace. Employers should also create an account with the Department to review and manage PFML applications for their organization’s staff.

If you have any questions about the Massachusetts Paid Family and Medical Leave Law, feel free to contact Janet Barringer at [email protected] or Lori Eller at [email protected].