Massachusetts has issued amended regulations implementing the state's paid family and medical leave program.
Background:
In 2018, Massachusetts enacted legislation that requires all private employers with employees in the state to provide paid family and medical leave (PFML) to eligible employees beginning January 1, 2021. The program is funded by premiums paid by employees, employers with 25 or more employees, and the self-employed. Contributions to the program began on October 1, 2019.
Medical Leave:
Employees are entitled to up to 20 weeks of paid leave in a benefit year for their own serious health condition, defined as an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice or residential medical facility, or continuing treatment by a health care provider.
Family Leave:
Eligible individuals are entitled to up to 12 weeks of paid leave in a benefit year to:
- Provide care for a family member with a serious health condition;
- Bond with their child during the first 12 months after the child's birth or placement for adoption or foster care; or
- Attend to obligations arising because a family member is on active duty or has been notified of an impending call to active duty in the United States armed forces.
Note: Eligible individuals are entitled to up to 26 weeks of family leave if it is to provide care for a family member who is a covered member or veteran of the armed forces who has an injury or illness that was incurred or aggravated while on active duty.
No family or medical leave benefits are payable during the first seven calendar days after the date the leave begins.
Amended Regulations:
The amended regulations define key terms and clarify various aspects of the law. Here's an overview of some the changes.
Intermittent Leave:
The amended regulations clarify that intermittent leave must be taken in increments consistent with the employer's established policy to account for use of other forms of leave, but the state won't pay benefits in increments of less than 15 minutes. A covered worker won't be permitted to apply for payment for PFML benefits associated with intermittent leave until they have eight hours of accumulated leave time, unless more than 30 calendar days has lapsed since the initial taking of such leave.
Job Protection:
The regulations clarify that employees are entitled to job protection immediately following the first date on which they begin any type of leave that is associated with a qualifying reason, regardless of whether an application for benefits has been submitted to the state or whether that leave is paid or unpaid. In addition, employees who don't file an application for PFML benefits with the state, but use any other type of leave (including accrued paid leave or unpaid leave approved by an employer; temporary disability leave available from their employer; leave under an employer's paid family or medical leave policy; or extended illness leave bank provided by an employer) taken for a qualifying reason, will be entitled to job protected leave as of the date of commencing such leave and the leave will run concurrently with PFML.
Note: Covered individuals who are approved for leave benefits by the state may choose to use accrued paid leave provided by their employer rather than receive a paid PFML benefit. This leave provided by an employer runs concurrently with PFML. If employees choose employer-provided paid leave instead of PFML benefits, employers are required to inform them that the use of this leave will run concurrently with PFML.
Substance Use Disorders:
The amended regulations expressly state that that a substance use disorder may be a serious health condition under the law. Family or medical leave may only be taken for treatment by a healthcare provider, a provider of healthcare services on referral by a healthcare provider, or a program licensed or approved by the Massachusetts Department of Public Health. An absence because of the employee's use of the substance, rather than for treatment, doesn't qualify for leave.
Applying for Benefits:
The amended regulations establish that an eligible individual may file an application for PFML benefits with the state no more than 60 calendar days before the anticipated start date of the leave. The amended regulations also allow the employer to submit an application for benefits on behalf of a covered individual, provided that the employer first: (1) receives approval from the state; and (2) agrees to adhere to all of the requirements for PFML applications, including timelines.
Employee Notice:
An employee must generally give no less than 30 calendar days' notice to their employer of the anticipated start date of leave. If a delay in providing notice is beyond the employee's control, notice must be provided as soon as practical. Under the amended regulations, the state says it won't accept an application for benefits unless notice to the employer was made in accordance with the requirements.
Contract Workers:
Under the law, employers must count covered contract workers as part of their workforce. The amended regulations define a covered contract worker as a self-employed individual:
- For whom an employer is required to report payment for services on IRS Form 1099-MISC;
- For whom an employer or covered business entity is required to remit contributions to the Family and Employment Security Trust Fund pursuant to the requirements of the PFML law;
- Who performs services as an individual in Massachusetts;
- Who resides in Massachusetts; and
- Who isn't classified as an independent contractor under state law.
Compliance Recommendations:
The amended regulations also address applying for private plan exemptions, a prohibition on retaliation, and other topics. Employers should read the amended regulations in full and ensure compliance. Please contact your dedicated service professional with any questions.