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Employers, Take Note

By Amelia J. Holstrom, Esq.


The Massachusetts Paid Family and Medical Leave (PFML) law is a relatively new statute that employers have to comply with in the Commonwealth. Under that law, eligible employees can take up to 26 workweeks of job-protected leave each benefit year for various reasons, including leave for their own serious health conditions or the serious health condition of their family members; leave to bond with children after birth, adoption, or placement; and leave for certain military-based reasons.

During any PFML leave, an employee is paid a portion of their regular pay as a PFML benefit. While some Massachusetts employers have a private PFML plan, the majority provide PFML to their employees through the Commonwealth’s Department of Family and Medical Leave.

Recently, two very important changes were announced regarding the PFML law. As a result of those changes, employers need to take action in the coming weeks. Here is what you need to know.


The Contribution Rate Is Increasing

Employees (and employers at companies with 25 or more employees) fund the PFML program through contributions deducted from their wages. For employers who provide PFML through the Commonwealth, rather than a private program, the Department of Family and Medical Leave sets the contribution rates annually, and it recently announced that contribution rates will increase in 2024.

“Recently, two very important changes were announced regarding the PFML law. As a result of those changes, employers need to take action in the coming weeks.”

Beginning on Jan. 1, 2024, the PFML contribution rate for businesses with 25 or more employees is increasing from 0.63% of wages to 0.88%. Of the 0.88%, 0.18% applies to the family-leave portion of the law and may be paid for solely by the employee. The remaining 0.7% is applicable to the medical-leave portion of the law, of which 0.28% may be paid for by the employee, with the remaining 0.42% to be paid for by the employer.

Similarly, the PFML contribution rate for businesses with fewer than 25 employees is increasing from 0.318% to 0.46%. Employers with fewer than 25 employees may require the employee to pay the full 0.46% contribution, or they can pay a portion of the contribution at their option.

Individual contributions are still capped by the federal Social Security taxable maximum. In other words, PFML contributions are not paid by the employee or employer on any income over that maximum. For 2024, that maximum is $168,600.

The increase is not surprising given statistics recently released by the Department of Family and Medical Leave in its FY 2023 Report. The report, which covered July 1, 2022 through June 30, 2023, indicates that the department approved more than 143,000 applications for PFML in FY 2023, which was a 27.39% increase in approved applications over FY 2022. With more PFML claims receiving approval, the department is paying out more in benefits, which are funded by employer and employee contributions.


A New Notice Is Now Required

The change in the contribution rate means that employers need to issue a new PFML notice to employees. Under the law, employers are required to give employees a written notice, which includes information on the contribution rates, among other things, at the time of hire and 30 days in advance of any contribution-rate change.

The new contribution rates will be effective Jan. 1, 2024. As a result, employers must provide notice to their employees no later than Dec. 2, 2023. The Department of Family and Medical Leave issues a model notice for employers to use each year, which will be found on the department’s website once it is released.


‘Topping Off’ PFML Payments

Since its inception, the PFML statute prohibited an employee from using company-provided paid time, including but not limited to vacation, personal, and sick time (collectively, PTO) and receiving PFML benefits from the Department of Family and Medical Leave at the same time.

In other words, an employee who chose to use PTO during their PFML leave was not permitted to receive any payment from the state. Employees could not even supplement — frequently referred to as ‘topping off’ — their reduced-PFML benefit using PTO to receive 100% of their pay during their leave. This, however, has recently changed.

Employees who apply to the department for PFML benefits on or after Nov. 1, 2023 will be allowed to supplement their PFML benefits with accrued PTO provided by their employer at their option. This will enable an employee to receive their full pay while on PFML leave, if they choose to do to. It is important to note that employers cannot require an employee to use their company-provided paid time to top off.

Employers with private plans may need to make some changes, too. Prior to Nov. 1, 2023, employers with private plans could choose whether or not to permit employees to top off their reduced PFML benefit by utilizing company-provided PTO. There is no longer a choice. Beginning on Nov. 1, employees working for employers with private plans will also be permitted to utilized company-provided paid time off, at their option, to supplement their PFML benefit to receive their full pay while on leave.


What Should Employers Do Next?

Employers should review the Department of Family and Medical Leave website regularly for the new contribution-rate notices and send those out to employees no later than Dec. 2, 2023. Additionally, now that employees have the option to top off their PFML benefits with PTO offered by the employer, employers should review their PFML policies and other related documents to make any necessary changes in light of the new topping-off option.

Employers who have questions about the changes to the law or edits to their policies and related documents should work with their labor and employment counsel to address those questions.


Amelia Holstrom is a partner with the Springfield-based law firm Skoler, Abbott & Presser, P.C., with a practice that focuses on litigation avoidance, employment litigation, and labor law and relations; (413) 737-4753.