On January 1, 2021, Massachusetts workers became eligible to apply for most of the benefits under the Massachusetts Paid Family and Medical Leave Act (“PFML”). The law provides family and medical paid leave for employees:
- To manage one’s own serious health condition
- To manage family affairs while a member is on active duty overseas
- To care for a family member who is a covered Service Member
- To care for a family member with a serious health condition (Eff. July 1, 2021)
- To bond with a child newly born, adopted, or placed in foster care.
The law created a new department, the Department of Family and Medical Leave ("DFML"), which accepts employee applications for the leave benefits and makes determinations as to eligibility. Payments to employees come from the DFML itself.
A question we have received from several employers concerns whether the employee may recover PFML payments at the same time the employee is out on workers’ compensation following a work-related injury. Would an employee not be receiving a “double recovery” if he received both PFML and WC at the same time? The solution to this issue is found in the regulations made by the DFML:
"458 CMR 2.12 (6) Reductions. The weekly
benefit amount for a period shall be reduced
by the amount of wages, wage replacement,
or leave that a covered individual on family or
medical leave receives for that period from
(a) any government program or law, including
unemployment benefits under M.G.L. c. 151A,
or workers' compensation under M.G.L. c. 152,
other than for permanent partial disability
incurred prior to the family or medical leave
application for benefits;…”
In other words, when an employee is out on workers' compensation but also eligible for PFML, then the PFML payment will be reduced by the amount received from workers' compensation.
A follow-up question is: Does the employer or insurer need to take steps to notify the DFML? Based on our discussions with the DFML, employers and insurers do not need to notify the DFML of any workers' compensation payments. Rather, in the application process, the employee must identify (and certify!) all other forms of payments and benefits received, including workers' compensation. The DFML also has independent capability to identify such payments being made to claimants. Employers will receive notification of the employee taking leave and benefits from the DFML. Even though the State receives the benefit of the offset, we are recommending that where the serious illness is a workers' compensation claim, the employer should notify their carrier so that all parties are aware of the employee leave.
We would like to take the opportunity to remind you of several other components of PFML:
- Under PFML, employees are eligible for leave on day one of employment, unlike FMLA which requires that the employee work for your company for 1,250 hours in the previous year to gain benefits; however the employee must have worked and earned $5,100.00 at some job in MA to be eligible, not just the current employer.
- PFML applies to all MA employers, not just those with 50 or more employees as in FMLA.
- Where possible, an employee may be on WC, FMLA, and PFML (and possibly even the MA Parental Leave law!) simultaneously. This is known as “concurrent” leave. In this circumstance, an employee with a serious health condition could use all 12 weeks of FMLA concurrently with the first 12 weeks of PFML. Then the employee could continue on PFML for 8 more weeks to use the maximum of 20 weeks available under PFML. If the employee were to then have a family member with a serious illness, the employee could then use an additional 6 weeks under the Act (Eff. July 1).
Lastly, PFML offers strong protections. Employers should be aware that the Act contains a very strong “anti-retaliation” provision: if an employer terminates, demotes, disciplines or takes other “adverse” action against an employee who has used the benefits within six (6) months, it creates a “presumption” of retaliation. The employer must “rebut” the presumption by “clear and convincing” evidence.