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Massachusetts - Final Regulations for Paid Family and Medical Leave

Massachusetts Paid Family and Medical Leave (PFML) is a state-offered benefit for anyone who works in Massachusetts and is eligible to take up to 26 weeks of paid leave for medical or family reasons. PFML is funded through a Massachusetts tax, and is separate from both the federally mandated benefits offered by the Family Medical Leave Act (FMLA) and from leave benefits that may be offered by an employer. On July 24, 2020, the Massachusetts Department of Family and Medical Leave (DFML) released its PFML final regulations, which:

  • Modified the definitions of:
    • Accrued paid leave and that is does not include a disability policy or program of an employer or covered business entity; or paid family, or medical leave policy of an employer or covered business entity.
    • Active duty to mean full-time duty in the active military service of the United States and full-time National Guard duty and deployed to a foreign country.
    • Average weekly wage (AWW) and that if an individual has multiple employers, the AWW will be separately calculated for each employer or covered business entity.
    • Average working week as the average number of hours worked from the two highest quarters of the 12 months preceding an individual’s benefits application.
    • Base period to be the last four completed calendar quarters within the previous five calendar quarters immediately preceding the date an application for benefits is filed with the department for a qualified period of paid family or medical leave.
    • Extended illness leave bank as a voluntary program where covered individuals may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason.
    • Financial eligibility test to address wages received from multiple employers or covered business entities within the base period can be aggregated to determine financial eligibility for leave.
    • Former member of armed services by deleting an exclusion for dishonorable discharge.
  • Added an allowance for telehealth (at § 2.02(a)(3)) in the continued treatment by a healthcare provider provisions, “the requirement for treatment by a health care provider means an in-person visit or telehealth visit to a health care provider. The first (or only) in-person or telehealth visit must take place within seven calendar days of the first day of incapacity.”
  • Deleted a reference to substance abuse (at § 2.02(g)), added a new section to address leave for a substance abuse disorder (at § 2.08(10)), and that it may be a serious health condition.
  • Regarding intermittent leave:
    • Changed terms of intermittent leave to allow it to be taken in increments consistent with an employer’s policy, which is used to account for use of other forms of leave. However, the department will not pay in increments of less than 15 minutes. Additionally, a covered individual will not be permitted to apply for benefit payments for intermittent leave until they have eight hours of accumulated leave time, unless more than 30 calendar days have passed since they initially took leave.
    • Clarifies that each request for intermittent leave must require recertification consistent with the new definition of intermittent leave (§ 2.10(1)).
  • Clarified that use of an employer’s disability policy, an employer’s paid leave policy, and an employer’s extended illness leave bank program will begin job protected leave and such time will run concurrently with the DFML benefits.
  • Regarding private plans:
    • Clarified eligibility for covered individuals to require coverage under a private plan (§ 2.07(1)(c)).
    • Clarified criteria for financial eligibility and leave benefits under a private plan (§ 2.07(2)(e)).
    • Clarified coverage where an employer terminates a private plan or leaves the state plan for a private plan or transfers among private plans (Section 2.07(8)(b)).
    • Clarifies that covered individuals can begin to file applications for benefits with the department on the first day of the first quarter following an employer’s termination of a private plan (§ 2.07(c)).
  • Extended the timeline that the department can notify an employer of a change in the term of an approved exemption from 30 to 60 days  (§ 2.07(1)(c)(2)).
  • Addresses coverage of former employees and how applications for benefits are filed depending on whether covered individual is employed or unemployed at the time of filing (§ 2.07(8)(e)).
  • Obligates covered individuals to notify the department within seven days of a change in relevant circumstances that would justify an amendment of the leave period or benefit amount (§ 2.10(2)).
  • Clarifies that the calculation of benefit determinations will be based on wages earned with a specific employer (§ 2.12(2)). 
  • Clarifies that the maximum weekly benefit amount to limit benefits based on benefits or wages received from other employers and that that leave, in the case of multiple employers, does not need to be taken at the same time (during a single period of leave)(§ 2.12(4)).
  • Regarding reductions:
    • Deleted a reference to a leave allotment in the weekly benefit amount reduction terms (§ 2.12(6)).
    • Added a new subsection to allow the department to consider other wages earned by a covered employee as a possible reduction (§ 2.12(6)(d)(3).
    • References to allow the department to reduce benefits where the covered individual has other benefits under another employer’s private plan or for wages earned from other employment were deleted (§ 2.12(6)(b) and (c)).
  • Clarified that after initial seven-day waiting period job protected leave begins (§ 2.12(7)).
  • Clarified the substitution of employer-provided paid leave and the effect on the use of time provided by an employer towards DFML benefits (§ 2.12(8)(a) and (c)).
  • Clarified situations when employers are entitled to reimbursement (§ 2.12(9)).

Review the redlined version of the regulations to see the changes made for the final version. The DFML also provides a guide for employers.