Seyfarth Synopsis: With Massachusetts Paid Family and Medical Leave (PFML) benefits becoming available on January 1, 2021, the Massachusetts Department of Family and Medical Leave (Department) issued several updates, a new set of FAQs, and new forms, including a new mandatory poster and the medical certification form for a serious health condition. A summary of the Department’s updates and links to the new forms are provided herein.

The Department recently issued an updated workplace poster and the public program’s medical certification form for a serious health condition of the employee or a family member. The Department also released several informative materials, including FAQs, information for employers, and a guide for employees.

Updated Workplace Poster

The Department released an updated PFML Workplace Poster. As a reminder, all employers are required to display an updated poster at their place of work.

Certification Form

The Department published the certification form required to be submitted to the Department with an employee or covered contract worker’s application for PFML leave under the public program for a serious health condition. The form can be found here.

Employer Portal

In October, the Department requested that employers provide the contact information for their Leave Administrator here. In the coming weeks, the Department will open registration to an Employment Portal where employers can self-register their leave administrators and manage communications with the Department.

Interplay Between Employer-Provided Benefits And PFML

The Department confirmed that, under the public program, employees are not permitted to “top-off” PFML benefits by using accrued paid time off from their employer.

However, the Department clarified that, under an approved private plan, an employer can allow their employees to supplement their private plan exemption benefit amount with accrued paid leave.

Lastly, the Department clarified that private disability policies that are purchased separately by the employee (i.e. voluntary worksite benefits) do not cause the employee’s PFML benefits to be reduced.

Applications On Behalf Of Employees

Under the PFML Law, employers may apply for benefits on behalf of employees. However, the Department anticipates that this application process will not be available until later in 2021.

The Department expects that applications for bonding leave for the birth, adoption or placement of a child in 2020 will be available on December 15th. Employees and covered contract workers can apply for PFML benefits for all other qualifying reasons beginning on January 1, 2021.

Intermittent Leave

The Department also issued further guidance regarding intermittent leave here. The Department clarified that employers must designate a minimum increment for intermittent leave, and the minimum increment may not exceed 24 consecutive hours. Increments must be measured in 15-minute multiples. Under the public program, if employers do not inform the Department of their established minimum increment for intermittent leave, the Department will default to 15-minute increments. A covered individual must submit a request for intermittent leave within the applicable minimum increment; otherwise the request will be rounded down to the applicable minimum increment.

Retroactive Contributions For Terminated Private Plans

In its FAQs, the Department provided clarification that an employer that terminates a private plan is expected to remit retroactive contributions back to the effective date of the initial exemption approval if it fails to renew its plan for a second term. After the filing and approval of the renewal, an employer may terminate its private plan at the end of the second term without owing retroactive contributions. Employers with an exemption that was initially approved prior to January 1, 2021, are required to go through one (1) renewal cycle in order to avoid owing retroactive contributions.

The Department also addressed the retroactive contribution requirements for an employer that fails to maintain a private plan or has its approval withdrawn by the Department. The Department made clear that if an employer encounters one of these situations, the Department may assess a penalty of up to the employer’s total annual payroll for employees and covered contract workers or fraction thereof that it failed to maintain said plan, multiplied by the then-current annual contribution rate required under the PFML Law. This amount may also be subject to penalties and interest from the due date of the PFML return to the date the PFML contributions are paid. The employer or covered business entity may also be required to repay to the Trust Fund the total amount of benefits paid to covered individuals who received benefits from the Trust Fund during the period that the employer failed to maintain its private plan.