While COVID concerns have dominated the workplace for the past year, we wanted to remind our clients that employees can start taking certain leaves under Massachusetts Paid Family and Medical Leave (“PFML”) effective January 1, 2021.

For an overview of the law and its requirements, please see our earlier newsletters:

https://law.marshallhalem.com/preparing-for-the-massachusetts-paid-family-and-medical-leave-payroll-tax-march-2019/

https://law.marshallhalem.com/get-ready-for-massachusetts-paid-family-and-medical-leave-a-to-do-list-for-employers-april-2019/

We will be offering a free webinar for our clients on Tuesday, November 10 at 1 PM to review PFML’s requirements and answer any questions that you may have.  Please register by e-mail to manager@marshallhalem.com to receive your Zoom invite with details to easily join us.

Eligible Family and Medical Leaves

As of January 1, employees will be able to take the leaves for the following purposes:

  • To address the employee’s own serious health conditions (20 weeks)
  • To bond with a child during the first 12 months after a child’s birth or adoption/foster placement with the employee (12 weeks)
  • Any qualifying exigency arising from the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces. (12 weeks)
  • To care for a family member who is a covered service member with a serious health condition (26 weeks).

Starting on July 1, 2021, employees may take leave to care for other family members with a serious health condition, not limited to service members.

Employees can take a total of 26 weeks of leave for all purposes in any 52-week benefit period.  The 52-week benefit period begins to run on the Sunday immediately prior to the first day of leave.

Process for Taking Leave

Employees must provide their employer with at least 30 days’ notice of the anticipated starting date, length of leave, and expected return date.  If employees cannot provide 30 days’ notice due to emergency circumstances, they must provide notice as soon as practicable.

Employees also must file a benefit claim with the Department of Family and Medical Leave (“DFML”) within 90 days of the start of leave.

Leave will be paid directly from the DFML.  The weekly benefit will be a portion of the employee’s weekly salary, capped at $850 per week.  Employees can estimate their weekly benefit here:

https://www.mass.gov/info-details/calculate-employer-paid-family-and-medical-leave-contributions

Employers are allowed to “true up” their employees for the difference between their weekly DFML benefit and their regular weekly wage.  However, any additional company-provided leave benefits above an employee’s regular weekly wage will be deducted from the employee’s PFML benefits from the state.

At the end of leave, employees must be restored to their previous position or an equivalent position, with the same status, pay, benefits, length-of-service credit, and seniority.

Employees on leave must continue to accrue vacation time, sick leave, bonuses, and seniority credit as if they were actively working during the leave.

Private Plan Considerations

Employers can be exempt from PFML withholdings by using a private plan in lieu of state-provided PFML benefits.  To qualify, the private plan must provide at least the same level of benefits as PFML.  Many benefits providers are now offering PFML private plans, and if you are interested in a private plan, we recommend contacting benefits providers as soon as possible.

If your company is using a private plan in lieu of PFML, employees should follow the plan provider’s claims process.  PFML benefits will be paid by the private plan rather than the state.

Intersection with Existing Leaves

After January 1, 2021, any PFML leave will run concurrently with other family/medical leaves taken under the FMLA or company policy.  In other words, employees will not be allowed to “double dip” or stack multiple leaves to extend their total allotment of family/medical leave.  However, leaves taken in 2020 do not count against an employee’s 2021 PFML allotment.  If an employee has already taken a family/medical leave in 2020, they can still take an additional 12 weeks of leave under PFML starting on January 1.

This question may arise with parental leaves in particular.  For example, if an employee had a new baby on May 1, 2020 and took 12 weeks of FMLA or company parental leave, that employee would be eligible to take an additional 12 weeks of PFML in 2021.  Parents have until their child’s first birthday (or the one-year anniversary of an adoption/foster placement) to take PFML leave.

Intersection with FFCRA Leave

Under the Families First Coronavirus Relief Act (“FFCRA”), employers with 1-500 employees are required to provide up to 10 days of paid sick leave for employees who are sick or quarantined due to COVID-19 or who need to care for another individual who is sick or quarantined.  FFCRA also requires up to 12 weeks of leave for employees who are unable to work because their child’s school is closed or their childcare provider is unavailable.

These leaves are set to expire on December 31, 2020.  Because PFML does not take effect until January 1, 2021, FFCRA leaves are entirely separate from PFML leaves.  Even if an employee has used FFCRA leave this year, they will be entitled to take their full PFML leave in 2021.

To Do

We recommend that our clients take the following steps to prepare for PFML:

  1. Before October 31 – Update your preferred contact information with DFML. You should have received an email from DFML about updating your contact information.  If you did not receive it, you should reach out to your payroll provider or DFML to be sure that your company’s contact information is up-to-date.
  1. Update your handbooks and leave policies. Employers should have circulated the mandatory PFML notices last fall.  We recommend augmenting these notices with more detailed and customized leave policies for your workplace.  This can be as simple as adding a section to a handbook or as customized as creating an entirely new leave policy tailored to your business.
  1. Finalize any private plan exemptions. Many of our clients have been considering using private plans in lieu of state-funded PFML.  A number of benefits providers are now offering private plans that meet the requirements for a PFML exemption.  If you intend to use a private plan but have not set it up yet or applied for an exemption, we recommend starting the process as soon as possible.
  1. Double-check your withholdings. Employers should have been withholding PFML contributions since last year.  Double-check with your payroll provider to ensure that these withholdings are accurate.
  1. Tighten up performance management policies. If an employee takes a PFML leave, any adverse action taken by the employer in the six months following the leave is presumed to be retaliatory.  We strongly recommend that employers institute a consistent and regular review process, and document any performance issues on an on-going basis.  If you do need to take an adverse action against a poorly-performing employee, this consistent documentation will help you demonstrate that the action was taken for performance reasons, not retaliation for a PFML leave.