Part 2: MA PFML Regulatory Updates, and Preparation Tips

After covering the basics of MA PFML, employers should dive into the latest HR updates of 2020.  These aren’t changes, so much as further clarification on existing MA PFML regulations.  Workplaces should continue to follow MP’s HR consulting team, as the DFML is projected to continue to come out with further guidance and forms in the future.   

PFML benefits  

The DFML has provided greater clarity on how to calculate what an employee should be paid when on leave.  

• The average weekly wage should be calculated from the base period.  The DFML has clarified that the base period is the last 4 completed calendar quarters within the previous 5 calendar quarters immediately preceding the date an application is filed.   
• When calculating average weekly wages, the DFML specifies that, should a worker have multiple employers and take leave from them all at once, this amount should be calculated for each employer separately. 
• An average working week should be pulled from the average number of hours worked from the two highest quarters in the past 12 months. 
• The DFML has clarified that workers that are properly classified as an independent contractor under M.G.L c 151A Subsection 2 are not a ‘covered contract workers,’ and thus not eligible for PFML.  

Intermittent MA PFML leave 

The DFML has stated that it will not provide benefits for intermittent leaves with portions of less than 15 minutes.  Employees who take leave intermittently cannot apply for payment until they have taken at least 8 hours of accumulated leave.  A few examples of circumstances that might require intermittent leave are for dialysis, cancer treatments, or a medical condition that requires many medical appointments.  

Multiple employers and MA PFML 

The DFML has clarified further what should be done if workers have multiple jobs.   

• The calculation of benefits must be based on wages for each specific employer that a worker is taking leave from.  
• A worker is not required to take leave from all their employers at once.  If they can perform their part-time, for instance, they can take leave from their full-time job and continue the part-time job. 
• If all a worker’s employers that they are taking leave from are on the public plan, the state should administer their benefits.  However, if one or more employers has a private plan, benefits received under one employer’s private plan will be separate from any other employer’s private plan. 

Private plan MA PFML appeals  

Any private MA PFML plans must include an internal appeals process in their application.  Should employees need to appeal a private plan decision, they should do so internally before taking the appeal to the DFML. 

Use of accrued paid leave 

Should employees choose to use an employer-provided leave accrued leave (such as sick leave, annual leave, vacation leave, personal leave, compensatory leave, PTO, and more), they will not receive MA PFML benefits.  An employer must inform a worker when accrued paid leave will run concurrent with MA PFML (and thus negate their ability to receive benefits).  An employer’s disability or paid family or medical leave policy are not considered accrued paid leave under MA PFML.  

Reduction of PFML benefits 

A worker’s weekly benefit amount will be reduced by the amount of wages, wage replacement, or leave that comes from: 

• Unemployment or worker’s compensation 
• Other state or federal disability benefits law 
• Their employer’s permanent disability policy (but not short-term disability policies) 

Unless the aggregate amount would exceed their average weekly wage, the benefit amount will not be reduced by any wages received from another employer through self-employment or the wage replacement received from their employer’s: 

• Temporary disability policy or program 
• Paid family or medical leave policy 

Leave allotment will be proportionately reduced by the amount of leave taken for any qualifying reason during the benefit year. The benefit amount will be reduced by any paid leave received from any source for any qualifying reason in the prior 12-month period.  Any leave taken for the same qualifying reason prior to January 1, 2021 will not count against the benefit amount and/or leave allotment. (Thus, any FMLA, parental leave, or any family or medial leave taken in in 2020 won’t count.)  

Substance use disorder and MA PFML 

MA PFML legislation has now qualified ‘Substance Use Disorder’ as a serious health condition.  An employee can take a leave of absence for treatment.  However, their leave will not qualify solely for the employee’s use of the substance.  Workers may also take leave to care for a covered family member who is receiving treatment for substance abuse disorder.  The DFML has stated that being in treatment for substance abuse disorder does not prevent an employer from taking disciplinary action or firing.   Even if a worker is taking leave, if the employer has a policy against substance abuse, they can still take disciplinary action or fire an employee when they’ve violated that policy.   

PFML leave for childbirth 

The DFML has clarified that MA PFML benefits will not be payable during the first seven calendar days, except when it has been taken for a medical leave during a pregnancy or when recovery from childbirth is followed by family leave.  In that case, the seven-day waiting period for family leave will not apply.  If a worker takes MA PFML for multiple births in one year, they are eligible for no more than 12 weeks of leave in a benefit year.  Lastly, the DFML has clarified that MA PFML will run concurrently with the Massachusetts Parental Leave Law.  

Tips for preparing for MA PFML 

As discussed in part one of this series, there is currently paid family and/or medical leave laws in nine states and another 25 states have proposed legislation surrounding this topic.  Even employers that do not have workers in Massachusetts, should consider taking these steps in their strategic HR planning to prepare for paid family and medical leave laws in their other states.  They can do these on their own, or with the help of HR services like MP’s.  

Update your employee handbook for MA PFML 

Employers should begin with their company’s foundation: the employee manual.  There are a few areas that should be updated with MA PFML in mind.  If a workplace doesn’t have an employee handbook or doesn’t have the policies below, now is the time to create them.   

• Standards of conduct policy: Ensure that there is a policy that clearly lays out expectations, as well as unacceptable behavior.  This will come in handy if an employee must be disciplined or fired, but the employer needs to ensure that the action doesn’t look like retaliation for taking or requesting MA PFML.   
• Leave policies: Review and update any leave policies, including parental leave, disability, military, and FMLA.  Add language about when MA PFML will run concurrently.   
• Paid time off policies: Update these because they may be consulted frequently as employees weigh their options if they need to take time for medical or bonding reasons.  The DFML may also request this information when an employee applies for MA PFML leave.  
• Substance abuse policy: If the handbook doesn’t already have one, add it.  Detail out what is acceptable and unacceptable behavior.  This policy will be helpful should it become important to discipline or fire an employee, especially if they take leave for substance abuse disorder.  It will help managers avoid concerns about retaliation.    

Update job descriptions 

While this is generally good HR hygiene, it will be helpful for MA PFML specifically.  The DFML will request a worker’s job description during the application process for a leave.  Employers may also need to have an accurate job description ready should they require a certification of Fitness for Duty.  Workers will need to give their healthcare provider a list of their job requirements to get this certification.  

PFML Training for managers 

Managers don’t need to be trained on every detail of MA PFML.  However, it is important to make them aware of the basics.  This is especially important when it comes to giving and receiving feedback, performance management, and discipline and termination.  If an employee is taking or requesting MA PFML leave, a manager must be careful not to take actions that can be perceived as retaliation, thus opening the company up to lawsuits and fines.  

Click here for Part 1 of MA PFML Updates