For more than three months now, qualifying Massachusetts employees have been eligible for medical and family leave benefits under the Massachusetts Paid Family and Medical Leave (PFML) Act. As employers build out their PFML compliance programs and receive employees' PFML applications, many new questions and scenarios continue to arise. This blog post sheds light on some of these practical issues, including insight from the Department itself.
As explained in prior posts, Massachusetts workers facing a health crisis, bonding with a child, or caring for a sick relative may take up to 26 weeks of paid, job-protected leave pursuant to PFML. These benefits are available either through the Massachusetts Department of Family and Medical Leave (the "Department"), the state agency charged with administering and enforcing the PFML, or through employers' state-approved private plans.
Since January, the Department has hosted a number of virtual "Town Halls" aimed at answering questions from both employers and employees. In these Town Halls, the Department candidly acknowledged that the state has experienced a high volume of applications, and that workers have faced delays in receiving benefits. Part of the delay was attributed to the failure of some employers to register a "leave administrator" with the Department. Employers who have not already registered a leave administrator are encouraged to do so as soon as possible.
The Department further explained what the application process looks like in practice:
- Employers will receive an email letting them know that an employee at their company has begun an application for PFML.
- Employers are instructed to view the application details and to respond within 10 business days.
- An employer may be asked to confirm, among other things: whether the employee has taken any leave during the past benefit year; the employee's work patterns, hours, and wages; and whether the employer suspects potential fraud.
The Department also answered a number of questions from attendees. The following may be of particular interest to employers:
- Do employers risk violating HIPAA
by requesting medical information in connection with PFML
applications?
- No. Drawing parallels to the federal
Family and Medical Leave Act (FMLA) application process, the
Department explained that it researched this issue and determined
that employers do not violate HIPAA by collecting PFML
applications.
- No. Drawing parallels to the federal
Family and Medical Leave Act (FMLA) application process, the
Department explained that it researched this issue and determined
that employers do not violate HIPAA by collecting PFML
applications.
- If an employee gave birth and
took parental leave in 2020, can they still use PFML?
- Yes. PFML benefits were not available
prior to January 1, 2021.Anyone covered under the law is entitled
to such benefits, as long as the leave is taken within 12 months of
a child's arrival.
- Yes. PFML benefits were not available
prior to January 1, 2021.Anyone covered under the law is entitled
to such benefits, as long as the leave is taken within 12 months of
a child's arrival.
- Are employees able to split up
the 12-week bonding period? For example, provided leave is taken
within 12 months of the child's arrival, can an employee use
four weeks, go back to work for a few weeks, and then use the
remaining leave allotment later?
- An employee may only take
intermittent bonding leave with permission from their
employer.(Please see answer to Question 13 below for information on
other types of intermittent leave.)
- An employee may only take
intermittent bonding leave with permission from their
employer.(Please see answer to Question 13 below for information on
other types of intermittent leave.)
- Can an employee use paid time off
(PTO) and receive PFML benefits at the same time?
- No. Employees are not eligible for
PFML benefits if they are receiving their full wages from an
employer-provided PTO program.
- No. Employees are not eligible for
PFML benefits if they are receiving their full wages from an
employer-provided PTO program.
- Does use of PTO reduce the
allotment of PFML leave available? For example, if an employee
first takes three weeks of PTO from the company to bond with a
child, do they only get nine weeks of bonding leave under
PFML?
- Yes. The qualifying condition is what
matters for purposes of PFML. As such, use of PTO for a covered
reason will count against an employee's annual allotment of
PFML leave.
- Yes. The qualifying condition is what
matters for purposes of PFML. As such, use of PTO for a covered
reason will count against an employee's annual allotment of
PFML leave.
- Are former employees eligible to
take PFML?
- Yes. Former employees, defined as
employees that have been separated from the employer for less than
26 weeks and that met the financial eligibility requirements at the
time of separation, are also eligible for up to 26 weeks of PFML
leave. Please note that PFML benefits will be offset by any
unemployment insurance benefits the former employee receives.
- Yes. Former employees, defined as
employees that have been separated from the employer for less than
26 weeks and that met the financial eligibility requirements at the
time of separation, are also eligible for up to 26 weeks of PFML
leave. Please note that PFML benefits will be offset by any
unemployment insurance benefits the former employee receives.
- Is illness related to COVID-19
considered a serious medical condition within the meaning of the
statute?
- As with other medical conditions, whether sickness from COVID-19 is a "serious medical condition" depends on whether an employee obtains the appropriate certification. A positive test result is not enough, in and of itself, to qualify for leave.
In addition to the questions addressed at the Department's Town Hall, below are additional FAQs that we are seeing as employers navigate the PFML landscape.
- Can employers require
that employees use accrued PTO prior to using PFML leave?
- No. An employer may not compel an
employee to exhaust rights to any sick, vacation, or other PTO
prior to taking PFML leave. It may, however, allow an
employee to do so.
- No. An employer may not compel an
employee to exhaust rights to any sick, vacation, or other PTO
prior to taking PFML leave. It may, however, allow an
employee to do so.
- How does an unlimited PTO
policy interact with PFML?
- Employers with unlimited PTO policies
may specify in their policies that unlimited PTO cannot be used for
a leave of absence. The unlimited PTO plan would therefore
not impact PFML leave. Additionally, under PFML, the first
seven days of leave are considered an initial waiting period, and
benefits are not paid by the Department. If an employer wants
to compensate its employees for this seven-day waiting period, it
may include that in its PFML policy, but employers should refer to
that payment as "wage-replacement benefits" or
"supplemental benefits" rather than designate such
payment as use of unlimited PTO.
- Employers with unlimited PTO policies
may specify in their policies that unlimited PTO cannot be used for
a leave of absence. The unlimited PTO plan would therefore
not impact PFML leave. Additionally, under PFML, the first
seven days of leave are considered an initial waiting period, and
benefits are not paid by the Department. If an employer wants
to compensate its employees for this seven-day waiting period, it
may include that in its PFML policy, but employers should refer to
that payment as "wage-replacement benefits" or
"supplemental benefits" rather than designate such
payment as use of unlimited PTO.
- Can employers require
employees to exhaust PFML benefits before using additional
employer-provided family, medical, or temporary disability
benefits?
- Yes. An employer may require that
PFML leave benefits run concurrently with benefits or leave allowed
under the terms of an employer's temporary disability or
family/parental leave policy. Any PFML policy should explicitly
state this condition.
- Yes. An employer may require that
PFML leave benefits run concurrently with benefits or leave allowed
under the terms of an employer's temporary disability or
family/parental leave policy. Any PFML policy should explicitly
state this condition.
- May employers provide
additional family, medical, or temporary disability leave benefits
on top of PFML benefits?
- Yes. Employers may "top up"
employees such that they receive benefits greater than those that
would be available through PFML leave alone. For example,
PFML entitles an employee bonding with a new child up to 12 weeks
of leave and partial (50-80%) wage replacement. If an
employer seeks to offer 18 weeks of leave and full wage
replacement, it may pay the employee additional wage replacement
benefits on top of the PFML benefits for the first 12 weeks, and
then may elect to pay the employee their full salary for the
remaining six weeks after PFML benefits have been exhausted.
- Yes. Employers may "top up"
employees such that they receive benefits greater than those that
would be available through PFML leave alone. For example,
PFML entitles an employee bonding with a new child up to 12 weeks
of leave and partial (50-80%) wage replacement. If an
employer seeks to offer 18 weeks of leave and full wage
replacement, it may pay the employee additional wage replacement
benefits on top of the PFML benefits for the first 12 weeks, and
then may elect to pay the employee their full salary for the
remaining six weeks after PFML benefits have been exhausted.
- Are new mothers entitled
to both medical leave and bonding leave after giving birth?
- Yes. An employee may take PFML
medical leave during pregnancy or recovery from childbirth that is
immediately followed by PFML family bonding leave. However,
the request for medical leave must be supported by documentation
from a health care provider.
- Yes. An employee may take PFML
medical leave during pregnancy or recovery from childbirth that is
immediately followed by PFML family bonding leave. However,
the request for medical leave must be supported by documentation
from a health care provider.
- Are employers required to allow employees to take PFML on an intermittent or reduced leave schedule?
- The answer to this question depends
on what type of leave the employee is taking:
- PFML Family Leave:
- An employee that has taken PFML family leave to bond with a child may take intermittent leave only if the employer agrees to the schedule.
- An employee that has taken PFML family leave to care for a relative may take leave intermittently if a health care provider deems it medically necessary.
- An employee that has taken PFML family leave due to a qualifying exigency related to a family member's active duty may take leave intermittently.
- PFML Medical Leave:
- An employee that has taken PFML medical leave due to their own serious health condition may take intermittent leave if medically necessary.
- PFML Family Leave:
- What happens in the event an
employee does not return from PFML leave?
- Because employers are obligated to continue providing health care coverage to employees while they are on PFML leave, employers have been asking whether they may require an employee that does not return to work to repay the cost of health benefits provided during the leave. At this time, this is neither expressly permitted nor prohibited by the statutes and regulations. Any employer who incorporates such language into its PFML policy should stay informed about any changes to the PFML statute and regulations.
Originally Published by Foley & Lardner, April 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
