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Massachusetts Paid Family Vacation Answers

April 06, 2021

Foley & Lardner

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Qualified Massachusetts employees have been eligible for medical and family vacation benefits under the Massachusetts Paid Family Vacation and Medical Vacation Act (PFML) for more than three months. As employers expand their PFML compliance programs and receive PFML requests from employees, many new questions and scenarios continue to arise. This blog post sheds light on some of these practical questions, including what the department itself said.

As discussed in previous posts, Massachusetts workers facing a health crisis, bonding with a child, or caring for a sick relative can take up to 26 weeks of paid, sheltered vacation, according to the PFML. These benefits are available either through the Massachusetts Department of Family and Medical Leave (the “Department”), the state agency responsible for administering and enforcing the PFML, or through state-approved private employer plans.

Since January, the department has housed a series of virtual “town halls” in which questions from employers and employees are to be answered. In these town halls, the ministry openly admitted that the state had a high volume of applications and that workers were faced with delays in obtaining benefits. Part of the delay was attributed to the failure of some employers to register a “vacation manager” with the department. Employers who have not yet registered a vacation manager are encouraged to do so as soon as possible.

The department further explained what the application process looks like in practice:

• Employers will receive an email informing them that an employee in their company has submitted an application for PFML.
• Employers are instructed to review application details and respond within 10 working days.
• An employer can, among other things, be asked to confirm whether the employee took vacation in the previous performance year; the employee’s work patterns, hours, and wages; and whether the employer suspects potential fraud.

The department also answered a number of questions from the participants. The following may be of particular interest to employers:

1. Do employers risk violating HIPAA by soliciting medical information in connection with PFML applications?
   1. No. The department drew parallels with the Family and Medical Leave Act (FMLA) application process and stated that it had investigated this issue and determined that employers did not violate HIPAA by collecting PFML applications.

2. If an employee was born in 2020 and took parental leave, can they still use PFML?
   1. Yes. PFML services were not available prior to January 1, 2021. Everyone covered by the law is entitled to these benefits as long as the vacation is taken within 12 months of the arrival of a child.

3. Can employees split the 12-week retention period? For example, if vacation is taken within 12 months of the child’s arrival, can an employee use four weeks, return to work for a few weeks, and later use the remaining vacation allowance?
   1. An employee may only take temporary leave with the permission of his employer. (For other types of temporary leave, see the answer to question 13 below.)

4. Can an employee use paid time off (PTO) and receive PFML benefits at the same time?
   1. No. Employees are not eligible for PFML benefits if they are receiving full pay from an employer-provided PTO program.

5. Does Using PTO Reduce Allocation of Available PFML Vacation? For example, if an employee takes three weeks of PTO from the company for the first time to bond with a child, will they only get nine weeks of PFML detention?
   1. Yes. The qualification requirement is important for the purposes of PFML. Therefore, PTO use for a covered reason will count towards an employee’s annual PFML vacation allowance.

6. Are former employees eligible to take PFML?
   1. Yes. Former employees, defined as employees who have been separated from their employer for less than 26 weeks and who meet financial requirements at the time of separation, are also entitled to PFML leave of up to 26 weeks. Please note that PFML benefits are offset against any unemployment insurance benefits received by the former employee.
7. Is a disease associated with COVID-19 considered a serious illness for the purposes of the law?
   1. As with other medical conditions, it depends on whether an employee receives the appropriate certification whether the disease from COVID-19 is a “Serious Illness”. A positive test result alone is not enough to qualify for a vacation.

In addition to the questions answered at the Ministry’s Town Hall, below are additional FAQs we see as employers navigate the PFML landscape.

8. Can employers require employees to use the accrued PTO prior to taking PFML leave?
   1. No. An employer must not force an employee to exercise sickness, vacation, or other PTO rights prior to taking PFML vacation. However, this can be allowed to an employee.
9. How does an unlimited PTO policy interact with PFML?
   1. Employers with unlimited PTO policies can specify in their policies that unlimited PTO cannot be used for a leave of absence. The unlimited PTO plan would therefore not affect the PFML vacation. Additionally, according to PFML, the first seven days of vacation are considered the initial waiting period, and benefits are not paid by the department. If an employer wants to compensate their employees for this seven-day waiting period, they can include this in their PFML policy. However, employers should refer to this payment as a “wage replacement benefit” or “fringe benefit” rather than referring to such a payment as use of unlimited PTO.
10. Can employers require employees to complete PFML benefits before receiving additional employer-provided family, medical, or temporary disability benefits?
    1. Yes. An employer may request that PFML leave benefits coincide with benefits or leave permitted under the employer’s temporary disability provisions or family / parental leave policy. Every PFML policy should explicitly state this condition.
11. Can employers offer additional family, medical, or temporary disability leave benefits in addition to PFML benefits?
    1. Yes. Employers can “charge” workers so that they receive higher benefits than those who would be available at leisure through PFML. For example, PFML entitles an employee to bond with a new child for up to 12 weeks of vacation and a partial (50-80%) wage replacement. If an employer wishes to offer 18 weeks of vacation leave and full wage replacement, they can pay the employee additional wage replacement benefits in addition to PFML benefits for the first 12 weeks and then choose to pay the employee their full salary for the remainder six weeks after exhaustion the PFML benefits.
12. Are new mothers entitled to vacation and detention leave after giving birth?
    1. Yes. An employee can take medical leave in PFML during pregnancy or after childbirth, followed immediately by family leave in PFML. However, the request for medical leave must be supported by documents from a health care provider.
13. Do employers need to allow employees to take PFML on a temporary or shortened vacation schedule?

1. The answer to this question depends on what type of vacation the employee is taking:
   1. PFML family vacation:
      1. An employee who has taken PFML family leave to bond with a child can only take temporary leave if the employer agrees to the schedule.
      2. An employee who has taken PFML family leave to care for a relative may take intermittent leave if a health care provider deems it medically necessary.
      3. An employee who has taken PFML family leave because of a qualified need related to active service to a family member may take intermittent leave.
   2. PFML Medical Leave:
      1. An employee who has taken PFML leave due to their own severe health condition may take intermittent leave if there is medical need.

14. What if an employee doesn’t return from PFML vacation?
    1. Given that employers are required to continue providing health insurance to workers during their PFML vacation, employers asked if they might require an employee who is not returning to work to reimburse the cost of health care provided during the vacation . This is currently neither expressly permitted nor prohibited by laws and regulations. Any employer who includes such a language in their PFML policy should be kept informed of changes to the PFML statute and regulations.

Originally published by Foley & Lardner, April 2021

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

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