Legal Updates

Massachusetts Issues Final Regulations Under New Paid Family And Medical Leave Law

The Massachusetts Department of Family and Medical Leave (“DFML”) recently published final regulations governing the administration of employee leave under the soon-to-be-effective Massachusetts Paid Family and Medical Leave (“PFML”) statute.

The final regulations include several important changes from the earlier proposed regulations, including provisions affecting private plan exemptions, covered workers with multiple employers, and how employer-provided leave interacts with PFML.

Summary Of PFML Law

Starting in 2021, employers throughout Massachusetts will be required to provide up to 26 weeks of paid, job-protected leave annually to employees (and, in some cases, to contractors and former employees) for certain family-related or medical reasons:
 

• Up to 12 weeks of paid family leave may be taken to care for a family member with a serious health condition, bond with a newborn child, bond with a child after adoption or foster care placement, or manage family affairs when a family member is on active duty in the armed forces.

• Up to 20 weeks of paid medical leave may be taken to manage an employee’s own serious health condition, including chronic conditions, requiring treatment by a health care provider.

• Up to 26 weeks of paid family leave may be taken to care for a family member who is a covered service member undergoing medical treatment, or otherwise to address consequences of a serious health condition relating to the family member’s military service.

The weekly benefit amount for an employee on PFML will be determined through a formula based on both the employee's average weekly wage and the average weekly wage throughout Massachusetts. The initial maximum weekly benefit amount will be capped at $850, with this number to be adjusted annually.

Benefit payments to employees will be made through a special state trust fund, which will be funded through mandated payroll tax contributions by employers and employees. Alternatively, an employer may obtain an exemption from participation in the trust fund by adopting an approved private plan providing equally (or more) favorable PFML benefits to its employees.

Highlights Of Final Regulations

Some of the most significant provisions of the final PFML regulations are outlined below.

Private Plans

The final regulations clarify that an employer with an approved private plan exemption must make coverage available to covered employees as of their dates of hire. Employers are permitted to require employees to provide verification of wages earned in Massachusetts in order to determine whether they are eligible for PFML.

The regulations further clarify that an employer with a private plan exemption must make sure that covered workers do not experience any gaps in coverage due to the employer’s decision to use a private plan, rather than the state trust fund. To that end, when an employee files for PFML benefits through the state trust fund, the DFML will pay leave benefits for the entire duration of the leave, even if the employer transfers from the state fund to a private plan during the employee’s leave. Similarly, when an employee begins PFML under a private plan, the private plan must pay for the benefits for the entire duration of the employee’s leave, even if the employer transfers from the private plan to the state trust fund during the leave.

Additionally, the final regulations address PFML applications by individuals who are currently unemployed but were recently employed by an employer with a private plan exemption. In such an instance, the individual may apply for PFML benefits from his or her former employer, so long as the separation from employment occurred within the preceding 26 weeks. If an individual has found new employment, however, then the individual must apply for PFML benefits from his or her new employer.

Individuals With Multiple Employers

The final regulations also address how PFML will be administered for individuals with multiple employers. In such cases, the calculation of the weekly benefit amount will be based on the wages earned by the individual from each of his or her employers.

Further, an employee with multiple employers will not be required to take PFML from each employer at the same time. Consequently, a covered worker may need leave from one employer while not needing it from another.

For employers with private PFML plans, the fact that an employee takes PFML from another employer will not impact the benefits available to that employee through the private plan.

Finally, the new regulations do not include earlier provisions that would have allowed the state to reduce or limit PFML benefits based on benefits provided from a private plan or wages provided by other employers.

Interaction With Other Leave

Under the final regulations, if a covered worker is using “accrued paid leave,” (which is a defined term, as discussed below) such as sick leave, vacation, compensatory time, or paid time off for reasons that would qualify under the PFMLA, then that leave will run concurrently with the PFML time period, but the worker will not be able to receive PFML benefits through the state trust fund at the same time as he or she is using accrued paid leave. (By contrast, if PFML benefits are provided through an approved private plan, the employer may permit employees to use accrued paid leave to supplement their PFML benefits.)

PFML also will run concurrently with certain job-protected leave under other state or federal leave laws, if the employee qualifies for such leave. For example, if an employee taking PFML is also eligible for leave under the Massachusetts Parental Leave Act (“MPLA”) or the federal Family and Medical Leave Act (“FMLA”), then such leave will run concurrently with PFML.

Parental Leave

The final regulations provide that covered workers who give birth are entitled to a maximum of twelve (12) weeks of leave benefits, even in cases of multiple births. This contrasts with the MPLA, which provides up to eight (8) weeks of unpaid, job-protected leave per child.

Treatment For Substance Abuse

As is the case with the federal FMLA, a substance abuse disorder may qualify as a serious health condition for purposes of PFML, and therefore treatment for such a disorder may qualify an employee for PFML. Importantly, however, the mere use of a substance does not qualify an employee for leave. Similarly, the fact that an employee is seeking treatment for a substance abuse disorder does not shield the employee from adverse employment action for violating an employer’s policies, so long as the policy is applied in a non-discriminatory manner.

Definitions

The final regulations also provide an array of new or revised definitions, including the following:
 

• “Accrued Paid Leave” is defined as leave that is provided to an employee pursuant to another benefit plan or policy, including, but not limited to, sick leave, annual leave, personal leave, compensatory leave, or paid time off.

• “Chronic Condition” is defined as any “serious health condition” that requires periodic visits to a health care provider, continued over an extended period of time, and that may cause episodic rather than continuing incapacity. Examples include asthma, diabetes, and epilepsy.

• “Health Care Provider” is broadly defined to include licensed physicians, surgeons, dentists, chiropractors, podiatrists, midwives, osteopaths, clinical psychologists, optometrists, nurse practitioners, nurse-midwives, clinical social workers, and physician assistants.

• “Serious Health Condition” is defined to include any illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

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While many employers are overwhelmed with considerations related to the COVID-19 pandemic, the Commonwealth's deadlines for PFML compliance remain in effect, including the requirement that most types of paid leave be available to covered workers beginning on January 1, 2021.

If you have questions about the new regulations or the PFMLA more generally, our employment attorneys would be happy to assist.