Massachusetts: Employees Will Soon be able to “Top-Off” their PFML Payments Using PTO

By Amelia J. Holstrom - Skoler Abbott

October 20, 2023

A significant change is coming to Massachusetts Paid Family and Medical Leave (PFML), effective November 1, 2023.  Since its inception, the Massachusetts PFML statute prohibited an employee from using company provided paid time off (“PTO”) and receiving PFML benefits from the state at the same time.  In other words, an employee who chose to use PTO during their PFML leave was not permitted to receive any payment from the state.  Employees could not even supplement — frequently referred to as “topping off,” — their reduced-PFML benefit using PTO to receive 100% of their pay during their leave.  Effective November 1, 2023, this is going to change.  If employees apply for PFML benefits on or after November 1,  they will be allowed to supplement PFML benefits with accrued PTO.  It is important to note that employers cannot require an employee to do so. More information about topping off can be found here.

Employers with private plans may need to make some changes too.  Prior to the amendment, employers with private plans could choose whether or not to permit employees to top off their reduced-PFML benefit by utilizing company-provided paid time off.  The choice is no longer yours.  Effective November 1, employees working for employers with private plans will also be permitted to utilized company-provided paid time off, at their option, to supplement their PFML benefit to receive their full pay while on leave.

So, what should you do now? It is very likely that the Department of Family and Medical Leave will issue guidance in the near future explaining how to calculate the difference between PFML benefits and the employee’s regular pay so that when an employee decides to “top off,” the employer can easily determine how much paid time off to utilize and pay it within the time periods set forth under the Massachusetts Wage Act.

Employers should also review their PFML policies and other related documents to make any necessary changes, as updates will be required.  It is also very likely that the Department of Family and Medical Leave will issue a new PFML notice related to these changes for new hires and current employees.  Employers should check the website regularly for updates.

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