New Massachusetts Paid Family and Medical Leave Program in Effect

Workers in Massachusetts will be able to take paid, job-protected family and medical leave on January 1, 2021 under a new state program. The leave requirement applies to all employers in the Bay State regardless of size. The Paid Family and Medical Leave (PFML) program provides Massachusetts workers with 12 to 26 weeks of job-protected paid time off from work for family and medical reasons. The benefit is funded by a .75% payroll contribution which began in October 2019. A fact sheet provided by Massachusetts officials notes that PFML is separate from leave available under the federal Family and Medical Leave Act (FMLA) and explains differences between the FMLA and the PFML. It includes that the FMLA provides unpaid, job-protected leave to employees who work for employers with 50 or more employees while Massachusetts’ PFML applies to all Massachusetts employers and provides paid, job-protected leave to eligible workers for similar reasons as the FMLA but also includes a broader definition of family as well as a waiting period for eligibility.

Massachusetts’ PFML applies to all Massachusetts employers and provides paid, job-protected leave to eligible workers for similar reasons as the FMLA but also includes a broader definition of family as well as a waiting period for eligibility.

Who is eligible?

Workers who can take advantage of the program include:

• Full-time, part-time, or seasonal workers who work in Massachusetts
• Self-employed individuals
• 1099-MISC workers who work in Massachusetts, do not qualify as independent contractors, and who make up more than 50% of their employer's workforce
• Former employees who have been unemployed for 26 weeks or less
• Workers who have earned at least $5,100 during the last 4 completed calendar quarters, and at least 30 times more than how much they are eligible to get each week in benefits
• Workers whose employer doesn’t have a private paid leave plan approved by the Department of Family and Medical Leave (Department)

Reason and duration of leave

As of January 1, 2021, individuals who qualify can take up to:

• 12 weeks of family leave in a benefit year bond with a newborn child within the first 12 months after the child’s birth; bond with a child within the first 12 months after adoption or foster care placement; or manage family affairs when a family member is on active duty in the armed forces
• 20 weeks of medical leave per benefit year when the employee is unable to work due to their own serious health condition
• 26 weeks to care for a covered service member with a serious health condition

Starting July 1, 2021, qualified individuals may take up to 12 weeks of family leave during a benefit year to care for a family member with a serious health condition. The total combined family leave and medical leave a qualified individual may take in any benefit year is 26 weeks. Family member is defined as a child, parent, spouse, domestic partner, grandparent, grandchild, sibling, and parents-in-law. Taking PFML does not affect an employee's right to accrue vacation time, sick leave, bonuses, advancement, seniority, length-of-service credit, or other employment benefits, plans or programs. Employers may not require employees to exhaust PTO prior to or while taking PFML.

Job protected

An employee who has taken family or medical leave must be restored to the employee’s previous position or to an equivalent position.

The leave is job protected. This means that an employee who has taken family or medical leave must be restored to the employee’s previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave upon return from leave. However, an employer is not required to reinstate an employee who has taken advantage of PFML if other employees of equal length of service 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 leave. Employers must continue to provide and contribute to the employee’s employment-related health insurance benefits during the leave, at the same level and under the same conditions coverage that would have been provided if the employee had continued working.

Intermittent leave

Under PFML, qualified individuals can take their paid leave intermittently. However, employers can require that employees take leave in minimum increments of 2 hours at a time. Leave taken under the state program runs concurrently with leave taken under the FMLA.

Wages during leave

The first 7 calendar days of leave is unpaid, though employees may use accrued sick or vacation pay during those days. The leave has job protection from the first day of the 7-day waiting period. The maximum weekly benefit amount is $850 per week.

Employee notice

Employees must give employers at least 30 days notice of the anticipated start date of the leave or provide notice as soon as practicable.

Employer posting requirement

Each employer shall post in a conspicuous place on each of its premises a workplace notice. The Department must prepare or approve the notice, and it must provide notice of benefits available in:

• English
• In each language other than English which is the primary language of 5 or more employees or self-employed individuals of that workplace

Every employer must provide a notice to each employee within 30 days of the start date of the worker’s employment that explains the PFML benefits available. Each covered business entity shall provide to each self-employed individual with whom it contracts, at the time such contract is made, an explanation of the PFML benefits provided.

Enforcement

An employer that fails to comply with the PFML must pay a civil penalty of $50 for each employee and each self-employed individual with whom it has contracted for a first violation. Subsequent violations will result in a civil penalty of $300 per employee or self-employed individual with whom the employer has contracted. Employees and former employees have 3 years to file a civil action in superior court against employers alleging violation of the PFML.

No retaliation

Employers cannot retaliate against employees who take advantage of PFML leave.

Exemption

Employers who provide paid leave benefits that equal or exceed the state’s PFML can apply for an exemption to the leave requirement. The requirement was signed into law in June 2018. Employers began collecting and remitting a .75% payroll tax on October 1, 2019 to build up the estimated $800 million price tag for the program.