Paid Family and Medical Leave Act (M.G.L.c. 175M)(458 CMR 2.00)
What is the Paid Family and Medical Leave Act?The PFML provides that certain workers in Massachusetts may receive paid leave for family leave, an employee's health condition and service member-related events. The Department administers the paid leave through a Family and Employment Security Trust Fund (Fund). Employers and employees contribute to the Fund, and the Massachusetts Department of Family and Medical Leave administers payments to the employee.
What Types of Leave Does the PFML Law Provide? There are three types of paid leave: 1. to care for a family member who has a serious health condition or to bond with an employee's child following birth or placement for adoption; 2. to care for the employee's own serious health condition; and 3. to address any qualifying exigency arising from a family member who is on active duty and who has been notified of an impending call or order to active duty, or to care for a family member who is a covered service member.
How Long Is the Leave? The law provides for 12 weeks of paid leave to care for a family member or to bond with a child, 20 weeks for the employee's own health condition, and 26 weeks for service member-related events. The leave is capped at 26 weeks per benefit year. A benefit year is the 52 consecutive-week period beginning the Sunday after the first day that PFML is used by the employee. An employee's PFML allotment is based on the number of hours or days the employee typically works. For example, if an employee works a part-time schedule of variable hours, the amount of PFML that a covered individual is entitled to is determined on a pro rata basis. If an employee's schedule varies from week to week, pay is calculated based on a weekly average of the employee's scheduled hours over the 12 months prior to taking leave under the PFML.
Who Is a "Covered Individual"? Under the PFML all full-time, part-time, permanent and seasonal employees who perform work in Massachusetts (even if they do not live in Massachusetts) are "covered individuals" under the PFML, provided that they are also eligible for coverage under the Massachusetts unemployment insurance law. To meet the PFML laws financial eligibility requirement, an employee must have earned at least 30 times the weekly benefit amount the individual would be eligible to collect and at least $4,700 during the employee's prior year of employment. A former employee is also "covered individual" if his or her employment ended within 26 weeks of the start of the PFML, and the former employee also meets the financial eligibility requirement. A self-employed individual who resides in Massachusetts may also qualify as a "covered individual" eligible for PFML.
What Types of Employment Are Excluded from PFML? Certain categories of employment that are excluded from the Massachusetts unemployment law are also excluded from PFML, including:
work-study students, student nurses and interns of work trainee programs administered by nonprofit or public institutions
real estate brokers/salespeople and insurance agents/solicitors in commission-only jobs
employees of churches and certain religious organizations
employees in the railroad industry
services performed by inmates of penal institutions
services performed for a son, daughter or spouse
if under 18, services performed for one's father or mother, and
newspaper sales and delivery by persons under 18
What Contributions Must an Employer Make to the Fund? An employer with less than 25 employees is required to contribute to the Fund on behalf of their employees but does not need to make an employer contribution. The deduction may be made from the employee's pay. An employer with 25 or more employees must contribute to the Fund on behalf of their employees and must also make an employer contribution.
What Payroll Tax Contributions Must an Employer Make for Employees and Covered Contract Workers? All employers are required to contribute to the Fund through a payroll tax. For employers with 25 or more employees, the payroll tax is 0.75 percent of the employee's wages paid. The Department has determined that 0.62 percent will be allocated to the medical leave portion of the Fund and 0.13 percent will be allocated the family leave portion of the Fund. The law permits employers with 25 or more employees to require the employee to pay up to 40 percent of the medical leave allocation and to require the employee to pay up to 100 percent of the family leave allocation. An employer may deduct different percentages from the wages of different groups of covered individuals, so long as it does not require any individual to pay more than 40 percent of the medical leave allocation or 100 percent of the family leave allocation. For employers with less than 25 employees, the payroll tax is 0.378 percent of the employee's wages paid. The Department has determined that 0.248 percent will be allocated to the medical leave portion of the Fund and 0.13 percent will be allocated to the family leave portion of the Fund. Employees are responsible for 100 percent of the medical leave and family leave allocations, unless the employer elects to cover a portion of employees' contribution.
When Will Paid Leave Be Available? The dates are staggered based on the reason for the leave. On January 1, 2021 paid leave is available for an individual's own serious health condition, bonding with a new child and service member-related events. On July 1, 2021, paid leave is available for a family member's serious health condition.
How Much Weekly Pay May an Individual Receive? The weekly benefit amount is calculated based on a percentage of the individual's earnings end is capped at $850 per week. The amount is calculated at 80 percent of the individual' s weekly earnings if the individual's average weekly wage is equal to or less than 50 percent of the state average weekly wage, and 50 percent of the individual's weekly earnings if the individual's average weekly wage is more than 50 percent of the state average weekly wage. The Department will reevaluate the maximum weekly benefit annually.
May a Covered Individual Take Intermittent or Reduced Schedule Leave? Yes, in certain circumstances, a covered individual may take intermittent or reduced schedule leave for the individual's own serious health condition, or to care for a family member's serious health condition or due to a qualifying exigency arising out of a family member's active military duty or impending call to active military duty. However, an individual may not take intermittent or reduced schedule leave for child bonding, unless the employer and covered individual specifically agree. An employer may require an employee to take intermittent leave in increments that are not shorter than a time period designated by the employer and not greater than four consecutive hours. A covered individual who takes intermittent or reduced schedule leave will receive a pro-rated weekly benefit.
Does PFML Run Concurrently with Other Leave? Yes, in some circumstances. PFML win run concurrently with any other leave taken under the Family and Medical Leave Act, Massachusetts Parental Leave Act and the Massachusetts Earned Sick Time Law, provided the leave is for a qualified reason under those laws.
Must a Covered Individual Provide Notice to the Employer of PFML Leave? Yes. An employer may require an employee to provide notice of the anticipated start date of the leave, the anticipated length of the leave, the type of leave and the expected return date at least 30 days in advance (or as soon as practicable). The employer must first notify employees of this requirement, such as through a written PFML workplace policy.
Does an Employee Accrue and Receive Benefits During PFML?Yes. An employee must continue to receive health insurance benefits and accrue other employment benefits typically provided by the employer, including vacation time, sick leave, seniority and length of service.
Does an Employee Have a Right to Job Restoration? Yes. An employee returning from PFML is entitled to his/her same position or an equivalent position with the same pay, employment benefits. seniority and length of service. An employer is not required to restore the employee to his or her position "if other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of leave" provided that the employee who took leave "shall retain any preferential consideration for another position to which the employee was entitled as of the date of leave." An employer is also not required to restore an employee who was hired for a specific term or only to perform work on a discrete project if the employment term or project is over end the employer would not otherwise have continued to employ the employee.
May an Employer Require an Individual Returning from PFML to Complete a Fitness-For-Duty Certification? Yes, in certain circumstances. If the employer has a uniformly applied policy or practice that requires all similarly situated employees or covered individuals (e.g., employees in certain positions or employees with certain serious health conditions) to obtain and present a certification from their healthcare provider that the individual is able to resume work, then the employer may do so for an individual who takes leave for his or her own serious health condition. The employer must provide employees and covered individuals with notice of the fitness-for-duty requirement.
Does the Act Include Anti-Retaliation Provisions? Yes. An employer is prohibited from interfering with an employee's rights under the law or retaliating against an employee for exercising the employee's rights. This law creates a presumption of retaliation if there is any negative change to an employee's status or adverse action against the employee during the leave or within six months of the leave. The employer must rebut the presumption with "clear and convincing evidence" that the action was not retaliation and that the employer had "sufficient independent justification: for taking that action and "would have taken such action in the same manner and at the same time the action was taken."
Does the Law Provide a Private Cause of Action for an Alleged Violation? Yes. An individual may bring a civil action in Superior Court for an alleged violation of the anti-retaliation, job restoration and continuation of benefits (e.g., the right to accrue vacation and other benefits, and the continuation of healthcare benefits) provisions. The action must be brought within three years of the alleged violation. Unlike claims under Chapter 151B or the Massachusetts Wage Act, there is no administrative filing requirement. A prevailing plaintiff may be awarded various remedies, including all common law remedies, three times the employee's lost wages and benefits, and reasonable attorney's fees and costs. In addition, the court may issue a temporary restraining order or injunction and order reinstatement.
May an Employer Adopt a Private Paid Leave Plan Instead of Contributing to the Fund? Yes, with approval by the Department. An employer may elect to adopt a private plan in lieu of contributing to the Fund, provided the private plan confers all of the same benefits as PFML, does not cost employees more than they would be charged under the state plan, includes equivalent or better job and benefit protections, and is approved by the Department.
Must an Employer Provide Information to the Employee Upon Hire? Yes. The employer must provide written information to an employee within 30 days of the employee's start date. The written information must be in the employee's primary language and it must explain the employee's rights under the PFML. This notice may be distributed by email. The employer must obtain from each employee a written acknowledgment of receipt of the information, or the employer must maintain a statement indicating the employee's refusal to sign.
When Must an Employer Display the Workplace Poster? Employers must display the poster in an area where other workplace posters are displayed, in English and each language that is the primary language of five or more members of the workforce. Employers may access the workplace poster published by the Department, "Notice of Benefits Available Under M.G.L. Chapter 175M Paid Family and Medical Leave," in English and translated in other languages.
Below are key upcoming dates and recommended next steps:
Prior to January 1, 2021: Employers should consider how PFML will relate to existing leave policies and revise handbooks and policies accordingly.
January 1, 2021: Paid family leave benefits available for bonding with a new child, service member-related leave and for serious persona! health conditions.
July 1, 2021: Paid family leave benefits available for a family member's serious health condition.