As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML” or the “Department”) continues to provide guidance as it rolls out the state’s Paid Family and Medical Leave program (“PFML” or the “law”), which provides eligible workers with partial income replacement benefits for qualifying reasons.  As a reminder, beginning January 1, 2021, workers may take paid family leave to: (i) bond with a newborn, newly adopted child, or new foster child; (ii) manage family affairs for a family member who is on active military duty in a foreign country; and (iii) care for a family member who is a covered service member.  Also as of January 1, 2021, workers may take paid medical leave to manage a personal illness or serious injury that incapacitates them from working.  Finally, beginning July 1, 2021, all PFML benefits will become available, including family leave to care for a family member with a serious health condition.

Interaction with Other Benefits

We also previously reported that, according to the DFML’s Frequently Asked Questions page, workers cannot “top off” PFML benefits by using accrued paid time off (“PTO”) provided by their employer (although an employer with a private plan exemption offering paid leave benefits that are equal to or more generous than those provided under the PFML can allow workers to supplement the private plan exemption benefit amount with accrued paid leave).  Based on the latest in the DFML’s gradual release of guidance on the PFML, as well as on conversations with DFML representatives via the Department’s hotline, there appear to be some nuances to this rule, namely:

• PFML benefits run concurrently with employer-provided PTO, vacation, or sick time. Thus, for example, a worker may take a sick day under the employer-provided sick time policy, but that sick day will count against the worker’s eligibility for PFML benefits for that day (i.e., reduce the total PFML days available by one day) in situations where the reason for the sick day would also qualify for PFML benefits.

• In cases where an eligible employee on leave receives benefits pursuant to an employer-provided short-term disability (“STD”) plan or a paid parental leave policy, and the plan or policy provides that it runs concurrently with PFML, the worker will be entitled to PFML benefits and then receive a “top off” amount from the employer’s STD plan or paid parental leave benefit. Thus, for example, an eligible employee on parental leave, who normally earns $1,200 per week would be entitled to the current maximum PFML benefit of $850 per week from the DFML; the employee would then be entitled to up to $350 paid from the employer’s paid parental leave policy, thereby receiving a total weekly benefit of the employee’s regular weekly pay, i.e., $1,200. Note, however, that if payments under an employer-provided STD and paid parental leave benefits exceed the employee’s average weekly salary, payments from the DFML will be reduced accordingly.

Covered employers that participate in the state’s plan, and that provide their own STD benefits and/or paid family and/or medical leave programs, may be eligible for reimbursement for payments made by the employer to workers, provided the employer’s benefit is equal to or greater than what the employee would be entitled to under the PFML.  To be eligible for reimbursement, the employer-provided STD and/or paid family and/or medical leave plans must be self-insured.  (See reimbursement guidance).  Employers will not be reimbursed for payments made by a third-party insurer.  In addition, the DFML will not reimburse an employer if the Department sent payments directly to the worker for the period claimed on the employer’s reimbursement application.  Lastly, payments made to workers for earned or accrued time (e.g., PTO, sick and vacation time) or under a private plan exemption are not eligible for reimbursement.

Intermittent Leave

The DFML also issued new guidance on intermittent leave and leave taken on a reduced schedule due to a personal illness or serious injury, to care for a family member, or to care for a covered service-member with a serious illness or injury.  As of January 1, 2021, employers may set minimum leave increments of between 15 minutes and one hour.  The one-hour ceiling is consistent with permissible intermittent leave increments under the federal Family and Medical Leave Act.  If the employer sets no minimum increment, the DFML will default to the 15-minute minimum increment standard.  Notably, the Department will only pay for intermittent or reduced leave claims where the increment is at least 15 minutes, and the worker has accumulated eight hours of leave.  In addition, the worker must notify his or her employer of the intended leave within 30 calendar days of the date of application to the DFML.

Finally, for child-bonding leave to be taken on an intermittent or reduced leave schedule, the worker and employer must agree to such an arrangement and an appropriate schedule.

We understand that more guidance may be forthcoming.  We continue to monitor PFML guidance, and will provide updates on any further significant changes or refinements to the PFML program.

This post features contributions from Cynthia J. Park.