On January 1, 2021, the Massachusetts Paid Family and Medical Leave Act (“PFML”) will begin providing benefits to eligible workers. Eligible workers will be entitled to the following benefits:
• Up to 20 weeks of job-protected paid leave for a worker’s own serious health condition;
• Up to 12 weeks of job-protected paid leave related to the birth, adoption or foster care placement of a child;
• Up to 12 weeks of job-protected paid leave for a need arising out of a family member’s active duty service or impending call to active duty; and
• Up to 26 weeks of job-protected paid leave to care for a family member who is a covered service member with a serious health condition.
Beginning on July 1, 2021, covered workers may take up to 12 weeks to care for a family member with a serious health condition.
A worker is entitled to 26 weeks, in the aggregate, of paid family and medical leave in a benefit year.
Current W-2 employees, including full time, part time and seasonal employees, former W-2 employees who have been unemployed for 26 weeks or less, and 1099-MISC contractors who are working for a business whose workforce is made up of at least 50% 1099-MISC contractors who are not independent contractors, are eligible for PFML benefits. Eligibility is not based on the employer’s size or the employee’s length of service.
For individuals to be eligible, they must have earned at least $5,100 in the past 12 months and have earned at least 30 times more than the weekly PFML benefit amount to which they will be entitled.
During PFML, an individual will receive a weekly benefit amount calculated based on a percentage of the employee’s earnings, capped at a maximum of $850/week. There is a 7-day waiting period before an individual can begin to receive the benefit amount. During this waiting period, the individual may elect to use accrued paid time off, but an employer cannot require the individual to use any accrued paid time off during the waiting period.
Employers are required to provide notice to covered individuals of their rights and obligations under the law. Employers must display the PFML “Notice of Benefits” poster at their work place. They are also required to provide written notice of the benefits available under PMFL to covered individuals. (The notice can be provided electronically.) Employers must provide this written notice to all new employees within 30 days of their first day of employment. Employers must also obtain a written statement from each covered individual either acknowledging or refusing to acknowledge the notice. Employers are required to retain these forms. Copies of both the poster and notice can be downloaded from the mass.gov website.
Logistics of Applying For Leave
PFML is regulated and administered by the Massachusetts Department of Family Medical Leave (“Department”). Unless an employer has an approved private plan, a covered individual will apply for PFML benefits directly through the Department. The Department then determines the individual’s eligibility and administers PFML.
Employers must register a “Leave Administrator” with the Department in order to create an Employer Account and receive notifications from the Department concerning covered individuals’ leave applications. Once created, the Employer Account will allow the Leave Administrator to review, confirm, and provide details on an individual’s application for paid leave benefits. The Department will provide registered Leave Administrators with notices showing when individuals have started, submitted and received a determination on their applications for leave.
Any leave taken by a covered individual for a qualifying reason in 2020 cannot be counted against the amount of leave provided to the covered individual in 2021 for the same qualifying reason.
Interaction with Other Leave Laws and Paid Time Off
PFML runs concurrently with other applicable federal and state leave laws as well as with an employer’s own leave policies. Employees who use accrued paid leave (e.g. sick leave or vacation) or leave through an extended illness leave bank for a qualified reason under PFML cannot receive PFML benefits during that period. Use of accrued paid leave or leave through an extended illness leave bank will run concurrently with any PFML leave, which employers must advise their employees who choose to use such leaves.
Employees also may not apply sick or vacation time to make up the difference between their regular wages and their PFML benefit.
Employees who are approved for PFML must be reinstated to their previous positions or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of the leave. The leave cannot impact the employees’ benefits or the right to accrue them upon return. During the leave, the employer must maintain and continue to contribute to the employee’s employment-related health insurance benefits, provided employee remits premium amounts in accordance with the employer’s policies.
Employers are prohibited from discriminating or retaliating against an employee for exercising any rights under the PFML. Any negative change in the seniority, status, employment benefits, pay, or other terms or conditions of employment that occurs during the employee’s leave or the 6-month period following the leave or within 6 months of employee’s participation in PFML proceedings or inquiries will be presumed to be retaliation. This presumption can be rebutted only by clear and convincing evidence that the employer had an independent justification for taking the action it took and would have taken the same action at the same time regardless of the individual’s exercise of PFML rights.