As of November 1, 2023, the Massachusetts Paid Family and Medical Leave (PFML) law will permit employees to supplement their PFML benefits using accrued paid time off (PTO), such as sick or vacation pay. Employers cannot require that employees use their accrued PTO while receiving PFML benefits but must permit employees to do so.
Until now, Massachusetts—unlike several other states with such benefits—has prohibited many employees from using PTO to supplement their PFML benefits.
Under the PFML law, most Massachusetts employees are entitled to partial wage replacement and job protection for a period of family or medical leave. The leave program is funded through employee and employer contributions. Employers may participate in a “public plan” administered by Massachusetts’s Department of Family and Medical Leave (DFML) or offer a “private plan” through an insurer.
Employees’ weekly PFML payments are based on their average weekly wage and Massachusetts’s average weekly wage. For 2023, the maximum weekly benefit is $1,129.82. Because this benefit is lower than many employees’ weekly pay, employers often supplement employees’ benefits.
Previously, only employers offering a private plan could allow their employees to supplement PFML benefits with accrued PTO—public plan employers were prohibited from doing so. For employees of public plan employers, accrued PTO could only be used during the seven-day waiting period that applies to certain types of leave or to extend their paid leave after exhausting their PFML benefits.
As of November 1, 2023, employers using both private and public plans will be required to permit employees to supplement their PFML benefits using accrued PTO. Many employers’ PFML policies have previously prohibited this supplementation, and as such employers should revise their PFML plans and leave policies to comply with this change if necessary.
Because employers often think of PFML and PTO in full-day increments, and supplementation of PFML benefits will entail less than a full day of pay, employers are likely to have questions about how to calculate the amount of accrued paid leave used to supplement PFML benefits.
We anticipate that the DFML will issue guidance on these questions shortly. In the interim, employers should permit employees to use any accrued PTO proportionally based on the difference between the employees’ regular pay and their PFML benefits. In other words, employees should not be required to use a full day of PTO to supplement each day of benefits.
The DFML also released new contribution rates and weekly benefits, which will become effective on January 1, 2024. For employers with 25 or more employees, the contribution rate will increase to 0.88% of eligible wages. For employers with fewer than 25 employees, the 2024 contribution rate is 0.46% of eligible wages. For 2024, the maximum weekly benefit has increased to $1,149.90.
Employers must provide notice of these changes to their employees. Updated notices will soon be available on the DFML’s website.
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