New provisions of the Massachusetts Paid Family and Medical Leave (PFML) law went into effect on January 1, 2021. Employers with any workers in Massachusetts should be apprised of these new PFML benefits, which provide employees with up to 26 weeks of paid leave per year for any combination of the following:
- Up to 20 weeks per year to manage their own serious health conditions.
- Up to 12 weeks per year to bond with a new child during the first 12 months after the child’s birth, adoption or foster care placement.
- Up to 26 weeks per year to care for a family member in the armed forces who is undergoing treatment for a serious health condition received in the line of duty.
- Up to 12 weeks per year to manage family affairs when a family member is on (or has been called to) active duty in the armed forces.
- Up to 12 weeks per year to care for a family member with a serious health condition (effective July 1, 2021).
All full-time, part-time and seasonal employees are eligible for PFML benefits. 1099-MISC workers (specifically those that do not qualify as independent contractors) can also be eligible for PFML, but only when 1099-MISC workers comprise more than 50% of the workforce of the business with which they contracted to perform work. Additionally, former employees are eligible if they have been unemployed for less than 26 weeks at the start of their family or medical leave period.
Funding and Payments
PFML is funded by payroll contributions paid by employees and employers, as well as self-employed individuals who choose to opt-in to the program and purchase coverage. While out on PFML, employees receive a weekly benefit amount, based on both their own average weekly wage as well as the average weekly wage for workers throughout Massachusetts. Specifically, the weekly benefit amount is calculated as:
- 80% of the individual’s average weekly wage that is less than or equal to 50% of the average weekly wage for Massachusetts workers; plus
- 50% of the individual’s weekly wage that is greater than 50% of the average weekly wage for Massachusetts workers;
- Up to the maximum allowed benefit amount.
The maximum weekly benefit amount in 2021 is set at $850 per week. However, by October 1 of each year, the Massachusetts Department of Family and Medical Leave will adjust the maximum weekly benefit amount to be 64% of the state average weekly wage. The annually adjusted maximum weekly benefit amount takes effect on January 1 of the following year (i.e., the adjustment that will occur by October 1, 2021, will establish a new maximum weekly benefit amount effective January 1, 2022).
For reference, the Massachusetts average weekly wage effective October 1, 2020, is $1,487.78. Sixty-four percent of that average wage would be $952.18, compared to the $850 weekly maximum benefit during this first year of PFML implementation.
Notice Requirements Imposed on Both Employers and Employees
Employers must post workplace notices of benefits available under PFML, and the notices must be posted in conspicuous places at each of the employers’ premises. Employers must also issue written notice to new employees of PFML benefits within 30 days of their hiring dates. Similarly, businesses must give written notice of PFML benefits to 1099-MISC workers at the time they are contracted to perform work.
The PFML law also requires that—when possible—employees give at least 30 days’ notice to their employers of: (1) the anticipated starting date of the leave; (2) the anticipated length of the leave; and (3) the expected date of return. Employees that cannot provide 30 days’ notice for reasons beyond their control are to provide notice as soon as practicable. Furthermore, if an employer fails to provide notice as set forth by the PFML statute, the employee’s notice requirement is waived.
Distinctions from FMLA
Massachusetts PFML is distinct from the federal Family and Medical Leave Act (FMLA). Notably, while FMLA applies only to businesses with at least 50 employees, PFML applies to all Massachusetts businesses, regardless of number of employees. Additionally, PFML provides for paid leave, whereas currently FMLA only requires unpaid leave.
To qualify for FMLA benefits, an employee must have been with their employer for at least 12 months, with at least 1,250 hours worked over that time. Conversely, PFML eligibility is not dependent on how long an employee has worked for their current employer. However, a Massachusetts worker is only PFML-eligible if they earned at least $5,400 and at least 30 times their calculated weekly paid leave benefit amount in the last four completed quarters. Despite these differences, PFML can run concurrently with FMLA leave periods.
Private Plan Exemptions
Employers may apply for an exemption from collecting, remitting and paying PFML contributions by demonstrating that they offer comparable benefits to their employees through a private plan. The benefits offered to employees by private plans must be greater than or equal to the benefits provided by PFML to be granted an exemption. Additionally, private plans must not cost employees any more than they would be required to contribute to the state plan under PFML.
Potential Preview of Nationwide Paid Leave TrendsAt this point in time, the federal law and the laws of various states increasingly require national and multinational employers to be ever more thoughtful of their policies and practices in place, to ensure compliance with various legal provisions. Massachusetts tends to be a leader in terms of initiating new protections and benefits for those in the workplace, and that trend will likely continue. Accordingly, even employers that do not have workers in Massachusetts should keep abreast of employment law developments in the Bay State.