Seyfarth Synopsis: Effective November 1, 2023, the Massachusetts Paid Family and Medical Leave (PFML) law will allow employees to supplement (i.e. “top off”) benefits received from the Commonwealth of Massachusetts with any available accrued paid leave (e.g., sick time, vacation, PTO, personal time, etc.).
Employees still cannot be required to use accrued paid leave either before or while on PFML. This change was part of the recently passed fiscal year 2024 budget and brings Massachusetts in line with how other state paid family and medical leave laws operate.
Changes for Employers Participating in the Public Plan
Previously, employees could not use accrued paid leave during any period in which they received PFML benefits from the Commonwealth. Even though benefits did not cover an employee’s full salary, the PFML law prohibited employees from using accrued paid leave to “top off” their PFML benefit. Accrued paid leave could only be used during the 7-day unpaid waiting period, unless the employee elected to use accrued paid leave instead of receiving PFML benefits. Employees also were required to use accrued paid leave in one block of time at the beginning or end of the PFML period to avoid an interruption in PFML benefit payments. Now, these limitations no longer apply and employees can choose to top off their state benefits with accrued paid leave or save their accrued paid leave to use at a later time.
Changes for Employers with a Private Plan Exemption
Employers who offered PFML through a private plan previously had the option to allow their employees to “top off” private plan benefits with accrued paid leave. Employers are now required to provide employees this option. Therefore, private plan employers who did not allow use of accrued paid leave during PFML will need to revise their private PFML plans and any related policies. As a reminder, an approved private plan must offer benefits equal to or greater than the benefits provided by the public program to be granted an exemption.
Employers should look for guidance from the Massachusetts Department of Family and Medical Leave (DFML) regarding how to calculate the difference between PFML benefits and accrued paid leave so that employees who decide to top off PFML benefits with accrued paid leave are paid correctly (and on time). The DFML offers a calculator that is helpful in estimating an employee’s benefit amount which can be found here.
All employers, including those with a private plan exemption, should review their PFML policies and procedures to ensure compliance with this change.