Massachusetts Paid Family and Medical Leave Law – January 2021 Update for Employers

Happy New Year!  While many of us are thrilled to see 2020 in the rear view, 2021 ushers in a huge challenge for Massachusetts employers – the beginning of benefits and Job protections under the Massachusetts Paid Family and Medical Leave law (MAPFML).

MAPFML Background.  Please see our prior posts for an in-depth explanation of MAPFML here, here and here.

Most Benefits Now Available.  Effective January 1, 2021, paid leave benefits and job protections are available under MAPFML for employees who (i) have a serious medical condition, (ii) wish to bond with a child born, adopted or fostered within the prior 12 months, or (iii) wish to care for a covered service member with a serious health condition.  Employees are entitled to up 26 weeks, in the aggregate, of leave based on qualifying conditions.

Key Guidance Updates.  During recent weeks, the Department of Paid Family and Medical Leave (the “Department”) and other agencies have provided the following guidance of interest to employers:

• Emergency Regulation 458 CMR 2.02.  This emergency regulation provides clarification to the definitions of Covered Individual, Employee, and Employer.
• Emergency Regulation 458 CMR 3.00.  This emergency regulation clarifies that family leave for bonding is available for births, adoptions and foster placements that occurred in 2020, so long as the covered individual otherwise qualifies and the leave is completed during the first 12 months after the child’s birth, adoption or foster placement and within 2021.  The regulation also provides that an employee of an acute care hospital may request, and an employer may grant, an extension of family leave for bonding beyond such 12 month period. 
• Application Available.  For individuals eligible for MAPFML benefits through employers participating in the state fund, an application for benefits can now be made through the Department’s website. Individuals eligible for MAPFML benefits through an employer using a private plan should apply through the employer or its third party administrator or insurer, as applicable. 
• Health Certification Form Available.  A Certification of a Serious Health Condition and some guidance on how to complete it has been made available on the Department’s website. 
• Remote Worker Guidance.  TIR 20-15 provides that, until 90 days after the COVID state of emergency is lifted in Massachusetts, an individual who previously performed services outside of Massachusetts and was not subject to MAPFML will not become subject to MAPFML solely because the individual is temporarily working from a location in Massachusetts due to certain pandemic-related circumstances. Likewise, an individual who previously performed services in Massachusetts but is temporarily working from a location outside of Massachusetts solely due to a pandemic-related circumstance continues to be subject to the MAPFML rules.  TIR 20-15 thus extends prior guidance issued in TIR 20-10, which was set to expire on December 31, 2020. Please note, however, that employers who have switched employees to a more permanent remote work basis (i.e., not solely due to pandemic-related circumstances), must determine the applicability of MAPFML coverage separately.
• Tax Treatment of Contributions and Benefits.  Although the Department has yet to provide definitive guidance on the tax treatment of MAPFML contributions or benefits, the Department recently update its tax statement to indicate that contributions are likely be made on a post-tax basis. 

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