February 25, 2019

In 2018, Governor Baker signed the Massachusetts Family and Medical leave law (G.L. c. 175M) into law and will provide paid family and medical leave to Massachusetts employees. This law will be funded by a payroll tax that is starting in July 2019. In January 2021, employees will be eligible to begin paid family and medical leave. While many are familiar with a federal law known as the Family Medical Leave Act (FMLA), this Massachusetts law differs in many respects and will apply to almost all employees in Massachusetts. The Department of Family Medical Leave (“Department”) is the new agency created to administer the law and employee applications for benefits. This article only provides a short summary of the law and for further details, you should read the law or seek legal advice on how it applies to your business.

Massachusetts employers must provide an employee under this law with protected medical and/or family leave. The length of protected leave will vary depending on the type of leave requested:

  • Up to 20 weeks to care for the employee’s own serious health condition, which may be taken intermittently or on a reduced schedule
  • Up to 12 weeks of family leave to bond with an employee’s child during first 12 months of care (birth, foster or adoption placement)
  • Up to 12 weeks of leave for a qualifying exigency due to a family member on active leave or notified of impeding call to duty, which may be taken intermittently or at a reduced schedule
  • Up to 26 weeks to care for a family member who is a covered service member, which may be taken intermittently or at a reduced schedule
  • On July 1, 2021, employees will be eligible for up to 12 weeks of family medical leave to care for a family member with a serious health condition, which may be taken intermittently or at a reduced schedule
  • Up to 26 weeks total of either family or medical leave in a benefit year

Please note that the definition of who constitutes a “family member” is broader under this state law than the FMLA’s definition of this term.

An employee must provide 30 days advance notice to an employer for any leave requests the employee anticipates under this law, but this notice requirement may be delayed for reasons beyond the employee’s control. The request should also include the start date, length of leave and the expected return date.

An employee may use paid time off, sick or vacation time concurrently with this leave, but an employer cannot require such. An employee’s rights under FMLA and Massachusetts Parental Leave will run concurrently with the state leave law.

Employees taking leave under this law must be restored to their previous positions, or to an equivalent position, with same status, pay, employment benefits, and seniority as of the date of the employee’s leave. Employers will also be required to continue any health insurance benefits under the same coverage as provided to the employee had they not taken leave. An employer cannot retaliate against an employee who uses such leave or attempts to exercise amy rights under this law.

The Massachusetts Family and Medical Leave law will be funded through a payroll tax of .63 percent of an individual’s annual earnings. This payroll tax will be paid into the Family and Employment Security Trust Fund. Employees pay this contribution, but employers with 25 or more employees will share in this payroll tax based on a formula to be determined annually by the Department. Employers must determine the average number of employees on an annual basis by counting full, part-time, temporary, and seasonal employees for each pay period over the prior year and dividing the total number by the number of pay periods.

As of July 1, 2019, employers must post a notice of this law in an area where employees congregate or regularly access, and provide newly hired employees with written notice of the law within 30 days of hire.

The amount of compensation an employee will be entitled to will be determined under a formula that calculates a weekly benefit that, currently, will not exceed $850 per week. The Department may annually adjust this amount.

Employees must meet the financial eligibility requirements to take this leave. The financial eligibility requirements are the same requirements for receiving unemployment, and it will be similarly administered as unemployment laws by the Department.

The law also allows employer to petition the Department for approval of any private plans that employers may use as an alternative. However, the Department must first approve such and the private plan must provide all the same rights and protections of the state law without any limitations. There are additional requirements for plan approval that may be reviewed in the draft regulations.

You will find updates from the Department posted at its website Draft regulations have been issued and some details of the law may change. The Department will likely issue standard notice documents for employers and employees to use for leave requests prior to January 2021.

This law will have an impact on employer’s work force and policies related to leave. Employers should seek an attorney’s review of current policies to determine compliance before July 1, 2019.

This publication, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Pomeroy Law P.C. and its attorneys. This newsletter is intended for general information purposes only and you should consult an attorney concerning any specific legal questions you may have.