Seyfarth Synopsis: Massachusetts Paid Family and Medical Leave (PFML) benefits are now available for Massachusetts workers. On January 12, 2021, the Massachusetts Department of Family and Medical Leave (Department) issued several updates, including guidance on intermittent leave, reimbursements for qualifying paid leave plans, and updated FAQs. A summary of the Department’s updates and links to the new guidance are provided herein.
The Department issued a number of updates on January 12, 2021, including updated guidance on intermittent leave [link: here], information on reimbursements for qualifying paid leave plans [link: here], and updated FAQs [link: here ].
The Department had previously issued guidance on intermittent leave in December 2020 that was withdrawn. It has now reissued that guidance, with a few changes. Principally, the Department clarified that for intermittent leave or leave on a reduced leave schedule taken because of an employee’s own serious health condition, to care for a family member with a serious health condition, to care for a covered servicemember with a serious injury or illness, or leave for a qualifying exigency, an employer’s policy (under the public program or an approved private plan) may set a minimum increment, but the minimum increment cannot exceed one hour. This brings the PFML law in line with the federal Family and Medical Leave Act’s treatment of intermittent leave increments.
For claims under the public program administered by the Department, increments must be measured in 15-minute multiples. Thus, the minimum increment for employers in the public program must be set at no less than 15 minutes and no greater than 60 minutes, and it must be in a 15-minute multiple (i.e. a minimum increment of 15, 30, 45 or 60 minutes). If the employer does not set a minimum increment, the Department will default to a 15-minute minimum increment. The Department will not pay for increments smaller than 15 minutes and will pay intermittent leave and leave on a reduced schedule only when the employee has accumulated eight hours of leave time or more than 30 calendar days have lapsed since the initial taking of leave.
As a reminder, bonding leave may only be taken on an intermittent or reduced leave schedule if the employer and employee agree, including on the schedule.
Reimbursements For Qualifying Paid Leave Plans
The PFML law authorizes employers in the public program that also offer a paid temporary disability, family, or medical leave policy to be reimbursed from the Department in certain circumstances. If an employer makes payments to a covered individual during a period of family or medical leave that are equal to or greater than the amount required by the PFML law, the employer may be eligible for reimbursement from the benefits the individual would have been paid by the Department. Employers are not eligible for reimbursement if the employee has received benefits from the State.
The Department clarified that the only payments that are reimbursable are those made through a paid temporary disability, family, or medical leave policy, or payments made from an extended illness leave bank. To be eligible for reimbursement, the employer’s temporary disability policy or paid family and medical leave policy must be a self-insured plan. Employers who have fully insured plans will not be reimbursed for payments made from an insurer, even where the employee or the employer pays any portion of the premium on the insurance plan.
Payments for an employee’s earned or accrued time (e.g. PTO, sick, vacation and personal time) are not eligible for reimbursement. Benefits paid through an approved private PFML plan also are not eligible for reimbursement.
Employers in the public program can submit a request for reimbursement by having their a Leave Administrator log into PaidLeave.mass.gov where they will find a link to a form to submit a request for reimbursement. Employers must have a designated Leave Administrator contact set up through their Employer Account.
The employee must first file an application with the Department before an employer can request a reimbursement. The Department noted that it is working on a solution for employers to submit applications for reimbursement where the employee is only receiving payment from their employer during their leave and is not otherwise applying for a benefit from the DFML.
FAQs Regarding Use Of Accrued Paid Leave
The Department also has updated its FAQs. As previously reported, the FAQs confirm that under the public program, employees cannot “top off” PFML benefits by using accrued paid time off. However, under an approved private plan, employers may permit employees to supplement their PFML benefit with accrued paid leave.
The Department has provided information on how employers can set up their Employer Account to review PFML applications, which can be found here .
The Department also provided additional guidance for multiple-entity employers seeking private plan exemptions. Multiple-entity employers must submit an exemption request for each individual entity separately under each entity’s EIN. They may submit the same forms for each entity, as long as they include a document on the organization’s letter head including the names of all the entities and confirming that all entities listed are covered under the paid leave policy or plan.
We will continue to provide updates as the Department releases new information. Please reach out to any of the authors or your Seyfarth attorney with any questions.