Starting January 1, 2021, most of the benefits established by the Massachusetts Paid Family and Medical Leave Law (“PFML”) become available to employees who work in the state. Specifically, as of that date, an eligible employee taking leave for any of the following reasons can receive pay during leave, which is offered by the state but funded through payroll deductions that have been in place since October 2019:

  1. Management of the employee’s own serious health condition
  2. Management of family affairs while a family member is on active duty overseas
  3. Care of a family member who is a covered service member
  4. Bonding with a child during the first 12 months after the child’s birth, adoption, or foster care placement

Paid family leave benefits to care for a family member with a serious health condition will be available starting July 1, 2021. Intermittent leave is generally allowed for all PFML reasons except for child bonding. An employer may, however, agree to intermittent leave for child bonding.

Employees must provide notice to their employer before applying for PFML benefits. Absent proof of such notice, the Massachusetts Department of Family and Medical Leave, which administers the benefit program, may deny PFML benefits. Unless impracticable due to a delay for reasons outside of the employee’s control, 30 calendar days’ notice before commencement of the leave is required.

If the application for PFML benefits is approved, there is a seven-day waiting period before benefits are payable, which will count against the total available period of leave in the benefit year. This waiting period applies for each application for benefits, with the exception of medical leave during pregnancy or recovery from childbirth if supported by documentation from a healthcare provider that this medical leave is immediately followed by family leave. In that case, the seven-day waiting period for the family leave is not required.

Employers should keep in mind that the length of PFML leave available in an employee’s benefit year varies depending on the reason for such leave. An eligible employee may receive up to 20 weeks of paid leave for their own serious health condition and up to 26 weeks to care for a family member who is a covered service member. Paid leaves for other reasons under the PFML are capped at 12 weeks.

or larger employers who are also covered by the federal Family and Medical Leave Act (“FMLA”), there is an important wrinkle that requires attention in order to ensure consistency between your FMLA policy and leave entitlements under the PFML.

Under the FMLA, eligible employees who work for covered employers are entitled to unpaid, job-protected leave in a defined 12-month period. There are four options from which an employer may choose to establish the applicable 12-month period – including a rolling 12-month period measured backward from the date an employee uses any FMLA leave. This method, however, is not permissible under the PMFL because it provides that the benefit year is the 52-week period beginning on the Sunday immediately preceding the PFML leave.

Accordingly, Massachusetts employers using the rolling backward method to determine the 12-month period under the FMLA may want to consider changing to a different calculation method for administrative ease, such as the 12-month period measured forward from the first date an employee takes FMLA leave. However, any employer that elects to change to a different method of calculating the 12-month period must give all employees at least 60 days’ advance notice of the change, and the change must occur in a way that permits employees to retain the full benefit of their leave entitlement under the method that affords the greatest benefit to the employee.

Employees who want to apply for PFML leave must do the following at least 30 days in advance of the anticipated start of leave (unless a delay is beyond the employee’s control, in which case the employee should do so as soon as is practicable):  (1) notify the employer of the need for leave and the anticipated start date; and (2) apply for leave with the Department of Family and Medical leave online here.

If you have any questions about the intersection of the FMLA with the Massachusetts PFML, or any other questions regarding the PFML in general, Beck Reed Riden LLP’s employment attorneys are available to assist.

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