Massachusetts: Department of Family and Medical Leave Finalizes Revised PFML Regulations

By Erica E. Flores - Skoler, Abbott & Presser, P.C.

September 22, 2020

Summer is (almost) officially over, kids are (sort of) back in school, there is a noticeable chill in the morning air and the leaves are just beginning to turn.  So what could be better than socially-distanced campfires, drive-by fall festivals, and virtual trick-or-treating?  More changes to the Massachusetts Paid Family and Medical Leave (PFML) regulations, of course!

Back in June, the Department of Family and Medical Leave published unexpected proposed revisions to what were supposed to be the “final” regulations it had published a year earlier.  After a public hearing, the Department made some changes to those proposed revisions and quietly published a new set of “final” regulations.  Most of the changes the Department proposed back in June remain in the final version, but there are a number of noteworthy differences between what was initially proposed and what the Department ultimately adopted.  As we near the January 1 go-live date for PFML claims, employers looking to ensure a smooth transition should make note of these differences.

So grab yourself a pumpkin spice latte, find a quiet place to drink it without a mask on, and settle in for a good read as we examine all the new ways the Department is adding to your compliance challenges.

Intermittent Leave No Longer Required to be Taken in 15-Minute Increments

You may recall that, originally, the PFML regulations gave employers absolute discretion to decide the minimum amount of leave an employee had to use when taking PFML intermittently.  This was good for employers; higher increments would mean employees would use up their allotments more quickly and reduce the administrative burdens on businesses. It was not terribly surprising that the June 2020 revisions proposed to completely eliminate that discretion and require all intermittent leave to be taken in increments of 15 minutes.

In the final version, however, the Department adopted a third approach; specifically, employees who take PFML intermittently must take the leave in whatever increments of time the employer uses to account for other types of leave under an established policy.  While this might seem to put employers back in control, this could require employers to account for PFML in increments that are even smaller than 15 minutes, depending on how they account for FMLA, earned sick time, etc.

The Department also added language that prohibits employees from applying for PFML benefits until they have used at least 8 total hours of intermittent PFML leave or it has been more than 30 days since they first took the leave.  The Department made clear that it will not pay benefits in increments smaller than 15 minutes.

Availability of PFML for Substance Abuse Disorders

Under the new “final” regulations, employees may take PFML to receive treatment for a substance abuse disorder (which the Department now refers to as a “substance use disorder”), or to care for a covered family member who is receiving such treatment, as long as the treatment is provided by a health care provider, a provider of health care services on the referral of a health care provider, or a program that is licensed or approved by the Massachusetts Department of Public Health.

Still, the regulations also expressly allow employers to enforce established drug and alcohol policies as long as the policies are applied in a non-discriminatory manner and have been communicated to all employees.  This means that employers may discipline or even terminate an employee for violating their drug and alcohol policy, even if the employee has requested or is taking PFML leave to receive treatment for a substance use disorder.  Additionally, employees may not take PFML leave for any other reason related to a substance use disorder, such as when an employee is unable to work due to substance use or related symptoms (such as being hung-over or high).

Changes to Private Plans

The updated regulations include several new provisions related to everybody’s favorite PFML sub-topic—private plans!  Most importantly, the regulations specify when an employer’s private plan must cover former employees.

Previously, the regulations stated that former employees are covered if they met the financial eligibility test as of the date of their separation and have not been separated for more than 26 weeks at the start of their PFML leave, but the regs did not explain how private plans should handle claims filed by former employees.

The final version now makes clear that covered former employees who remain unemployed when they file a PFML claim must file the claim with their former employer, while covered former employees who have a new job must file the claim with their new employer.  Employers who have private plans, and plan administrators, are also now allowed to verify the financial eligibility of both new hires and former employees by inquiring about prior wages and current employment, respectively.

The Department also added language to the regulations that governs the rights of employees during transitions to and from private plans.  The language clarifies that either the Department or the private plan shall continue to provide PFML benefits to covered individuals for the duration of their leave if their claim was filed before the effective date of the transfer to or from the private plan.  Employers must also ensure that there is no coverage gap when transitioning from one private plan insurer to another.

Miscellaneous Other Changes

Finally, the updated regulations include a number of other small but important changes:

- An employee whose serious health condition is based on continuing treatment by a healthcare provider can prove the necessary continuing treatment by telehealth visits; in-person visits are no longer required.
- Previously, employees could not take PFML to care for a covered service member if that service member was dishonorably discharged from the Armed Forces.  That restriction has been eliminated.  However, an employee may only take leave to care for a covered service member if his or her service-related illness or injury was suffered or aggravated during a deployment to a foreign country.  Injuries and illnesses related to active duty service in the United States are no longer covered.
- The Department clarified that PFML leave runs concurrently with any other type of paid or unpaid leave taken for a qualifying reason, including leave taken under an employer’s temporary disability policy or program, family or medical leave policy and/or a voluntary sick bank, regardless of whether the employee ever even applies for PFML benefits.  The type of leave taken, however, determines whether the employee can also file a claim for PFML benefits.  Specifically, employees who use accrued paid leave like vacation, sick and personal time, or who receive paid leave from a sick bank, may not receive PFML benefits, while employees who receive benefits under an employer-provided disability policy or paid family or medical leave policy may receive PFML benefits, although those benefits may be reduced.
- Employers and employees must now notify the Department of any change in relevant circumstances that may justify a modification in the period of leave or the amount of benefits within seven (7) calendar days of the date of such change; there was no deadline previously.
- Employees who have more than one job need not take PFML from all of their employers for the same period of leave, and any wages they receive from another employer will not reduce the amount of their PFML benefits unless the total amount the employee would receive would exceed his or her average weekly wage from that employer (not from all employers).  In fact, the regulations expressly state that the average weekly wage of an employee who has multiple employers is to be calculated for each employer separately.
- PFML benefits will no longer be reduced to account for outstanding tax or child support obligations.

Are You Ready?

Paid family and medical leave in Massachusetts has evolved quite a lot since the so-called Grand Bargain was passed by the General Court back in June 2018, but if this latest round of regulatory editing is any indication, it is likely to continue to evolve for some time.

To be sure, the PFML program is poised to become a major governmental program as big or perhaps even bigger in scale and scope than unemployment or workers’ compensation, and the regulations are incredibly complex and still ambiguous in places.  So take the time to plan and prepare yourselves and your workforces, but be sure to stay tuned to new developments.  As claims start to roll in, additional guidance from the Department and eventually the courts is inevitable, and staying up-to-date on that guidance is crucial to minimizing your legal risk.

We will continue to follow all PFML-related developments and publish updates on our blog as the need arises.  But if you have specific questions about any of these regulatory changes, or anything else related to PFML in your workplace, feel free to reach out to any of our attorneys for assistance.  Happy Fall!