Top Questions About MA PFML: Part 1

All employers should start preparing for MA PFML. Workers can begin taking leave in January and they may be out for significant periods of time. Employers should also be aware of the various existing employee policies, as well as state and federal leaves that might interact with Massachusetts PFML. To help workplaces prepare, MP’s HR services team answers the top questions that HR departments are asking.

Q: This question is for multistate employers with workers in many locations, particularly in states that don’t have any type of paid leave policy, parental leave policy, or just something different than PFML in Massachusetts. For these employers, is it permissible to have a single parental leave policy and PFML policy that applies to all states where they have employees?

A: It is permissible to have just a single parental leave policy in your employee handbook, so long as it’s as generous as all state-mandated regulations that are applicable to your entire workforce. To achieve this, employers will really need to do their research and see what is required in the states where they have employees.

Keep in mind that parental leave is different than PFML. It is difficult for employers to find PFML disability plans that cover multi-state employers and satisfy all legal requirements. At the time of this writing, there aren’t currently many disability policies that could cover all the different types of leave. Massachusetts is particularly troublesome, because it includes people who have been terminated up to six months after termination. That’s different from many other states, which have already offered paid family medical leave.

Although it’s possible to have a single parental leave policy for a multi-state organization, it’s probably not likely that employers can find a disability policy that allows them to get a private plan exemption that covers the mandated requirements in all the states they operate in.

Q: What percent of a company’s workforce can be out on PFML at the same time?

A: There are no restrictions on this. The regulations don’t have any guidance or requirements regarding the percentage of a workforce that can be out at the same time. This means that if an employer knows in advance that they’re going to have several people out for various reasons, they should do some planning to figure out how they’ll provide job coverage. MA PFML is not only paid leave, but also job-protected leave. Employers must reinstate their employees to the same position when they come back from leave. This means employers need to figure out if it will make sense to get some temporary employees to cover some positions, or if current staff can cover for team members.

Q: Will employee and company rates increase annually based on the number of employees who take MA PFML?

A: No. Unlike the way unemployment rates are determined, PFML rates will not increase for individual employers based on employee utilization. PFML rates will be reevaluated on an annual basis to properly fund the plan, and any increases would be uniform across all employers who participate in the state plan. So, no employer will be individually liable for a higher percentage, just because they happen to have a high utilization rate.

Q: Are we required to allow employees to continue to accrue their vacation time while they’re out on PFML leave?

A: It is not clear whether employers need to allow employees to continue to accrue vacation time while they’re out. The DFML still hasn’t provided clarity on this question. Keep checking their website and, of course check in with MP, for updates. We’ll be holding another MA PFML webinar on January 28^th.

Q: Will a positive COVID-19 test qualify an employee for PFMLA?

A: Simply having a positive test result for COVID-19 does not qualify an employee to take MA PFML. However, if a worker has COVID, and because of that, they develop a chronic health condition for which they can provide medical documentation, they could potentially qualify for medical leave. Note that having COVID itself doesn’t make a worker eligible, but the chronic health condition that could develop from it might.

Q: What is the website that employers should direct employees to go to for applying for PFML? Or is there a number for them to call?

A: Thus far, the DFML has been quoted as saying that the portal will be opening for employees to apply on December 15th. (Note that as of this writing, the portal still isn’t open.) MP will provide further details surrounding this information once it becomes available. For employee questions about benefits and eligibility in the meantime, employees can call the department at (833) 344-7365.

Q: Does PFML only apply to companies with less than 50 people?

A: No. Generally, all businesses in Massachusetts must comply except if they are one of the (rare) excluded companies. There are some excluded industries that that are not subject. This list is very small. Generally, all employers with employees in Massachusetts must comply with PFML. Even out-of-state employers with one employee who works in Massachusetts (they don’t also have to live in MA) need to comply with MA PFML. (The 50-employee threshold is applicable for the federal FMLA, which is separate from MA PFML.)

Q: What happens if a lump sum of personal leave is granted to employees? Are they able to use this time while out on PFML?

A: A lump sum under a time off policy is still considered an accrued benefit. It’s all accrued in one lump sum, as opposed to over a period of time. If your employee is using that leave, then they would not be getting any monetary benefit from the DFML for the weeks that they’re using that accrued leave.

Q: What about employees who have a voluntary, non-company sponsored short-term disability plans on their own?

A: For those employers who offer a voluntary supplemental benefit for short term disability or employees who are using AFLAC, there isn’t guidance as to how that’s going to interact when employees are applying for MA PFML because the portal is not yet open. The assumption is that it is going to somehow offset what the paid family leave will pay workers, but there’s no concrete guidance yet.

Q: Are national employers implementing a separate 12-month period for FMLA? Many national employers have a rolling look-back period. However, under PFMLA, this is not permitted.

A: That is correct. FMLA is a federal law, and employers can’t have one FMLA policy for one group of employees and a different one for another. An employer’s FMLA policy will be completely separate from their PFML policy. Employers operating in Massachusetts must figure out how their FMLA policies interact with MA PFML policies since they will be running off different definitions of a “benefit year”. One helpful tip is to create a chart of the various leaves to help visualize the interplay between the different leave laws. Include FMLA, then relevant paid leaves per the states that the company operates in.

Q: How would employers have an exemption already when the benefit is just starting to kick in this January? Please clarify what you mean about “refiling for an exemption.”

A: Employers actually started making contributions to the state fund back in October of 2019. This is because before the program could begin, the state needed to collect contributions so that there would be funds available when employees could start taking benefits. Some employers who wanted to go with a private plan could apply for an exemption through the state and if approved, did not have to begin collecting and remitting those state contributions in 2019. Those businesses that had been exempt from collecting or remitting funds to the DFML, because they’re going with the private plan, need to reapply for that exemption so that they can continue to be covered by their private plans.

Q: Whose responsibility is it for applying for and getting benefits? Is it the responsibility of the employee for finding benefits from the state, or does the employer need to do that? Additionally, how will employers keep in touch with the state on these matters, and vice versa?

A: It is the employee’s responsibility to go into the portal. It’s an employer requirement to let employees know about MA PFML so that they will be able to go on to the portal and file for benefits themselves. At this point, employers should have a workplace notice posted, provided employees with an MA PFML employee notice for to sign off on, and should be working to implement a handbook policy as well. After an employee fills out an application, the employer will get an email from the Department of Family Medical Leave. It will ask for a contact on their account. The DFML needs someone on file so that they know who to get in touch with and let the employer know that someone at the company has filed for benefits. Employers may also need to clarify the information that the employee is filing. The worker should let the employer know that they’re filing 30 days before the event. However, if for some reason the employee forgot to tell the employer that they’re filing, the DFML will email the employer a notification (and ask any clarifying questions).

Q: Is it required that an employee uses paid leave from the employer prior to being able to apply for PFMLA through the state. Could they take the state leave first, then preserve their PTO?

A: The regulations prevent an employer from requiring employees to use their accrued benefits prior to going out on PFML or while out on PFML. Employers cannot require their workers to use their PTO or sick time while out on PFML, but they can allow them to choose to do so.

Q: How does PFML affect our employees that live in another state?

A: Only employees whose work location is Massachusetts would be eligible for family benefits. Even if a worker lives in MA, but their company is based in New Hampshire and their work location is New Hampshire, they wouldn’t be eligible for MA PFML. For those employers who are multi-state, you may need a separate handbook addendum for each state so that employees know which state-mandated benefits they are eligible for.

Q: Can employees use their accrued leave for those first seven days that are unpaid, or cause an issue with their leave?

A: Yes, they absolutely can use their accrued leave for those first seven days. For those first seven days of leave that are not paid by PFML benefits, an employee can use their own accrued sick time if applicable. They can also use PTO, vacation time, or personal days.

Q: How do private plans address coverage for terminated employees?

A: Those policies will all begin going into effect on January 1st. It will likely be different from carrier to carrier. Those employers who are using a private plan instead of the state plan will want to find out all those particulars from their insurance carrier.

Q: Why would somebody possibly not have an exemption any longer?

A: Like other insurance plans, the PFML private plan will need to be renewed. Employers can check the status of their current exemption by signing into their MassTaxConnect account. Employers must renew their exemption on or before the expiration date by submitting a renewal application in MassTaxConnect.

Additionally, things may have changed for the company since they were quoted on private plans back in October 2019. Perhaps an employer was able to secure a qualified private plan then (and thus be excused from having to make those FMLA contributions for the remainder of 2019 and 2020). However, what happens is much like process of renewing insurance plans. Those private PFML plans were quoted based on company demographics at the time that employers signed onto the plan. Things may have changed since then, especially because of the pandemic

Q: Is PFML funded by the state of Massachusetts? Will there be money coming out of the employer’s pocket to pay for PFML?

A: PFML is funded through a Massachusetts tax that is paid by employees and some employers. All subject employers must withhold and remit employee contributions, however only employers with over 25 employees will have to contribute an employer-paid contribution to the fund. Employers have already been withholding and remitting contributions to the state since 2019 via their taxes. There will be no extra fees for employers to pay outside of taxes.

Q: If employees should apply for leave 30 to 60 days in advance, how will it work if they are interested in taking leave in the beginning in January. This is especially pressing if the application portal is not yet available.

A: At the time of this writing, the portal still is not open. This means that if a worker is planning on taking leave as of January 1^st, they are not going to be able to apply for benefits through the state 30 days in advance. They will be able to apply as soon as the portal opens. That being said, the employee can still give their employer 30 days’ notice of their intention to go out on PFML in the meantime. MP’s HR consulting team recommends that employers and staff keep watch themselves for updates and also sign up for regular communications from MP. Our H.R. Resource Center emails, blog, and webinars are all great places to keep up with for notifications.

Q: Are there are any additional notices that need to be provided, other than the notices at time of hiring the posters displayed in the workplace?

A: As of right now, no. However, if employers have a private plan, they are required to give employees summary Plan Descriptions for their plan. Because the rate for the state fund is not going up for 2021, the DFML didn’t change the notice form that must go to employees. Thus, employers can continue to use the same employee notice that should have already been circulated at this point. MP’s HR services team will certainly keep you updated at upcoming webinars, on our blog, etc.

Q: Are employees also eligible to receive holiday pay?

A: This is likely to work very similar to FMLA. Under FMLA, if an employee is out on a full-time leave (not on intermittent leave), they would not be eligible for holiday pay. For workers that are using FMLA for intermittent leave for either bonding with a child or for caring for a family member with a serious health condition, the answer isn’t necessarily no. They may be eligible for holiday pay if the holiday falls during that intermittent time.

Q: If an employee lives in another state, but works remotely for a Massachusetts company, would they qualify for PFML benefits?

A: Not necessarily. To qualify, they need to work in Massachusetts. Here are some examples. If an employee works for an organization that’s based in New York, but their work location is Massachusetts because they work from home, they will qualify. On the other hand, if an employee is working for a New Hampshire employer and their place of employment or work location is typically New Hampshire, but they live in Massachusetts, they would not qualify. Employees are eligible if their work location is considered to be Massachusetts.

Q: If a company provides notice on PFMLA to new employees via their employee handbook, do they still need to provide the standalone notice from the state as well?

A: Yes. Employers should provide employees with both a policy in the employee handbook, as well as the separate acknowledgment form from the state. Having employees sign off on that acknowledgement form is a state requirement, but you should also provide your team with a clear and concise policy in the handbook to help them navigate the process of applying for/taking PMFL.