Massachusetts PFML

The Paid Family Medical Leave (PFML) is a state-offered benefit for anyone who works in Massachusetts and is eligible to take up to 26 weeks of paid leave for medical or family reasons. PFML is funded through a Massachusetts tax, and is separate from both the federally mandated benefits offered by the Family Medical Leave Act (FMLA) and from leave benefits that may be offered by an employer.

Types of Leave

The maximum amount of combined family and medical leave that an individual may take is capped at 26 weeks per benefit year.

Family Leave

Up to 12 weeks of family leave may be taken to:

• Care for a family member with a serious health condition;
• Bond with a child within the first 12 months after its birth;
• Bond with a child within the first 12 months after adoption or foster care placement; or
• Manage family affairs when a family member is on active duty in the armed forces.

Up to 26 weeks of family leave may be taken to care for a family member who serves in the armed forces.

Medical leave

Up to 20 weeks of medical leave may be taken:

• While an employee is unable to work due to the employee’s serious health condition.

Effective Dates of Employee Leaves

The law is effective on January 1, 2021 for leaves based on the employee’s serious health condition, bonding with a new-born child and leave related to qualifying exigency arising out of a covered individual’s family member’s active duty service or notice of an impending call or order to active duty in the Armed Forces.  The law is effective on July 1, 2021 for leave based on the serious health condition of an employee’s family member.

Who’s covered by PFML?

PFML is available to covered individuals who work in Massachusetts.
Covered individuals include: See the mass.gov web site for additional resources to determine who is a covered individual

• W-2 workers who work in Massachusetts, whether they are full-time, part-time, or seasonal;
• Self-employed individuals; and
• 1099-MISC workers who work in Massachusetts, do not qualify as independent contractors, and who make up more than 50% of their employer’s workforce.

Determining Your Total Workforce

As a Massachusetts employer, your responsibility for making contributions under the PFML depends on the makeup of your workforce. To make sure you are correctly assessed for contributions, it’s important that you properly report the size and makeup of your Massachusetts workforce to the Department of Family and Medical Leave (DFML).

To determine your responsibilities as an employer for 2020, you will need to count your 2018 workforce. Starting in 2021, you will count your workforce from the previous year.

Your Workforce Includes:

• Massachusetts W-2 employees (full-time, part-time, or seasonal). Generally, DFML follows the same eligibility criteria as the unemployment insurance program in Massachusetts. If you are required to report a W-2 employee’s wages to the Department of Unemployment Assistance (DUA), those employees should be counted. These employees don’t need to reside in Massachusetts to be covered.
• Massachusetts 1099-MISC contractors who meet certain criteria. Generally, an MA 1099-MISC contractor is an individual or sole proprietor who resided and performed services in Massachusetts for whom you reported payment for services on IRS Form 1099-MISC. These individuals must have performed services in your trade or business or were regularly engaged to perform services for you.
• If you own a business and pay yourself through a W-2, you are an employee of that business and will be considered part of your covered workforce under PFML.

Remitting Employee Contributions On Behalf of Covered Individuals

Each quarter, you must remit the required employee contributions for all covered individuals in your MA workforce. If your MA workforce had fewer than 25 covered individuals, you are not responsible for paying the employer’s contribution.

You may deduct all or part of the required employee contribution from wages.

For help calculating your workforce and contributions, use the contributions calculator.

1099-NEC Payments

Any worker you pay through a 1099-NEC form is not considered a covered individual, and you do not have to remit contributions on their behalf even if they used to be paid using a 1099-MISC form.

If you made contributions on behalf of individuals whose compensation is reported on a 1099-NEC form, you should now file amendments to the original returns reporting those contributions. See the guidance from the Department of Revenue on how to file an amendment.

Excluded Employment

Excluded employers and employment types are automatically excluded from PFML and do not need to apply for an exemption.

The same types of employment that are excluded under section 6 of the unemployment statute are also excluded from the PFML law, including:

• Services performed for a son, daughter, or spouse;
• If under 18, services performed for one’s father or mother;
• Services performed by inmates of penal institutions;
• Independent contractors as defined by this three-part test;
• Employment in the railroad industry;
• Services provided by real estate brokers/salespeople and insurance agents/solicitors in commission only jobs;
• Newspaper sales and delivery by persons under 18;
• Employment by churches and certain religious organizations ; or
• Services of work-study students, student nurses and interns, work trainee programs administered by non-profit or public institutions.
• Section 6 of MGL c. 151A has a complete list of excluded employment.

Opting-in Requirements for Excluded Employment

If you are an employer whose workforce is excluded in whole or in part under the unemployment insurance statute, you as an employer may opt-in to PFML coverage if you submit a notarized letter from an officer confirming that the employer’s governing body has elected PFML contributions.

If an employer chooses to opt-in, it must do so for all of its employees. An employer cannot selectively choose certain individuals for purposes of opting-in. To opt-in, the employer should register for Paid Family and Medical Leave contributions with its MassTaxConnect account and attach the notarized letter to the request.

Maintenance of Benefits and Non-Retaliation

While an employee is on PFML, the employer must continue to provide for and contribute to the employee’s employment-related health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave. An employee who has taken PFML must be restored to the employee’s previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave.

An employer may not retaliate against an employee for exercising his or her PFML rights. Any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee which occurs any time during or within 6 months after a leave taken by an employee, shall be presumed to be retaliation.Note that a “negative change” does not apply to “trivial” changes or “subjectively perceived inconveniences” in an employee’s work. An employer bears the burden of showing by “clear and convincing evidence” that the change was justified for reasons other than retaliation.For example, an employer may report to the DFML the employer’s bona fide belief that an employee committed fraud in connection with the employee’s application for benefits. In addition, violations of employment polices/rules will rebut the presumption of retaliation.

An individual may sue an employer for violation of the anti-retaliation, job restoration and continuation-of-benefits provisions. The action must be brought within three years of the alleged violation.  The individual has a right to a jury trial.  The scope of available remedies is breathtaking.  They include injunctive relief, reinstatement to position and benefits, treble damages for lost wages, benefits and other remuneration (including interest), common-law tort remedies (e.g., pain and suffering) and attorney fees.