Massachusetts Labor Update: Increased Minimum Wage, Paid Family Medical Leave Program Take Effect in Massachusetts

On January 1, 2021, a new minimum wage and a new paid family and medical leave program took effect in Massachusetts.

Both changes are the result of laws passed in 2018.

The Massachusetts minimum wage increase from $12.75 an hour to $13.50 is part of an incremental change toward $15 per hour in 2023. This year, tipped employees’ minimum hourly wage goes from $4.95 to $5.55.

Benefit amounts are variable, based on an applicant’s average weekly wages and the average weekly wage in the commonwealth.

Employees should give at least 30 days’ notice before beginning their application for paid leave and applications can be submitted up to 60 days before leave begins, state officials said. Unplanned leave can also be applied for retroactively.

Information about the program and how to apply is available on the state website: Mass.Gov/PFML

The updated mandatory poster for the workplace can be found here.

Employers are required to provide notice to covered individuals of their rights and obligations under the law.

Employers must display the Paid Family and Medical Leave “Notice of Benefits” poster in a conspicuous area in their workplaces. (Note that given the ongoing pandemic and the resulting shift to remote work in some businesses, employers may consider sending the poster directly to workers.)

Additionally, there are four main notices that must be provided to workers, as applicable, based on the number of covered individuals in an employer’s workforce, including the following:

• Employer notice to employees (workforce of 25 or more covered individuals)
• Employer notice to employees (workforce of fewer than 25 covered individuals)
• Employer notice to self-employed individuals (workforce of 25 or more covered individuals)
• Employer notice to self-employed individuals (workforce of fewer than 25 covered individuals)

Failure to provide notices may result in penalties. The DFML advises that employers that have not notified their existing workers should do so immediately.

Final Regulations

The DFML’s final regulations related to the PFML went into effect on July 24, 2020. The DFML continues to publish guidance further clarifying the interpretation of these guidelines.

Logistics of Applying for Leave

As the January 1, 2021, effective date quickly approaches, the DFML has released new guidance and clarification regarding the logistics of applying for leave.

On December 8, 2020, the DFML issued a press release “reminding employers to register a ‘Leave Administrator’” on the DFML’s website; doing so will create an Employer Account. Once created, the Employer Account will allow the leave administrator to review, confirm the accuracy of, and provide details on employee applications for paid leave benefits. Through the Employer Account, registered leave administrators will receive DFML notices showing “when employees have started, submitted and received a determination on applications for paid leave.”

Pending technical capabilities, employees may also begin to create online accounts to apply for leave in December 2020.

The DFML has provided a plain-language timeline explaining how the application process will work and about how long it will take.

Certification of a Serious Health Condition Form

A worker applying for certain types of leave must provide the DFML with a Certification of a Serious Health Condition form. The form is not required for parental leave to bond with a child or military active duty leave to manage family affairs when a family member is in the armed forces. The form contains a section for the worker to fill out, and then a section for healthcare providers (as defined by the PFML) to fill out. The worker must upload this form to his or her paid leave account once the form is completed.

Answers to Frequently Asked Questions

Over the past several weeks, the DFML has issued new guidance by email, through the DFML’s website, and by way of the DFML director’s verbal updates during public webinar appearances. Below are a few of the most frequently asked questions by employers and the answers provided by the DFML and its director. (Note that it is possible that the DFML may release additional guidance that could impact the answers to the questions below.)

Question 1. “Do private disability policies that are purchased separately by the employee, including through voluntary worksite benefits, cause the employee to have a reduction in DFML benefits?”

A1. No.

Q2. Can an employee “top off” PFML benefits by using accrued paid time off from their employer?

A2. No.

Q3. “Can an employer with a private plan exemption allow their employees to supplement their private plan exemption benefit amount with accrued paid leave?”

A3. Yes.

Q4. Would an employee with a COVID-19-positive test who is asymptomatic and who has been instructed to quarantine be considered to have a serious health condition for purposes of PFML?

A4. This is dependent on what is filled out in the Certification of a Serious Health Condition form. The existence of a positive test is not necessarily enough, by itself, to establish a serious health condition for PFML purposes. As with any other medical condition, the DFML would need the healthcare provider form to be filled out and signed by the provider. Additionally, if a family member had COVID-19, the allowance to care for them would depend on the healthcare provider form along with the fact that leave to take care of a family member will not be available until July 1, 2021.

Q5. For the initial seven-day waiting period under the PFML during which no benefits are paid, is that time eventually paid by the state after the state approves benefits and the employee is on leave, or is the employee never compensated for that seven-day waiting period?

A5. No, it is not going to be compensated by the DFML. An employee can choose to use their own accrued paid leave during that waiting period, but the employer cannot compel the employee to do so.

In addition to the informal guidance above, the DFML has also indicated that it will be releasing additional guidance on intermittent leave and employer reimbursements.