Massachusetts Paid Family and Medical Leave (MA PFML) Update

Session will start at 2 p.m. ET

November 6, 2019

This webinar is for you if…

• You have one or more employees working in Massachusetts

• You’re trying to understand your MA PFML obligations

• You’re curious about next steps for MA PFML January 1, 2021 readiness

• You’re considering private plan administration

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As your best partner for employee benefits, Sun Life can administer your Fully Insured or Self-Insured MA PFML plan alongside your already existing group benefits policy with us.

Your consideration is welcome.

Derek WarnerAVP, Group Market ManagerSun Life

Where to get more information• Visit us at sunlife.com/pfml

and click on Massachusetts– Robust Q&A about the law– Recording of today’s webinar

What we’ll talk about today

• MA PFML milestones – even what to do if you missed some

• The state program and early indicators of how it compares to private plan administration

• Overview of the MA PFML law⎻ Including how the law interacts with

other benefits

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Marjory RobertsonAVP & Senior CounselSun Life

Abigail O’ConnellSenior CounselSun Life

MA PFML is part of a growing trendStates Federal Proposed legislation• California• Connecticut (premiums collected

1/1/21 and leaves eff. 1/1/22)• Delaware (state EEs only/parental

leave only eff. 9/1/19)• Hawaii (disability only)*• Massachusetts (premiums collected

10/1/19 and leaves eff. 1/1/21)• New Jersey• New York• Oregon (premiums collected 1/1/22

and leaves eff. 1/1/23)• Rhode Island • Washington (premiums collected

1/1/19 leaves eff. 1/1/20) *On 7/5/18, Hawaii Gov. Ige signed law requiring legislature to propose PFL legislation by year-end 2019.

• Federal tax credit for PFML (expires 12/31/19)

U.S. Congress• Family Act (Gillibrand)• WorkFlex (Mimi Walters)• Econ. Security for New Parents Act (Rubio)• Cassidy-Sinema Paid Parental LeaveCities/Districts/Territories

• San Francisco (parental leave only)

• District of Columbia (premiums collected 7/1/19; leaves effective 7/1/20)

• Puerto Rico (disability only)

States • Colorado• Georgia• Illinois• Maine [still pending]• Minnesota• Nebraska• New Hampshire (passed legislature but

vetoed by governor)• New Mexico• Pennsylvania• Vermont . . . and more!

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MA PFML milestones

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When can employees begin taking MA PFML?

Date Leaves available

1/1/21 Up to 20 weeks per benefit year of paid medical leave (PML) for the EE’s own serious health condition

1/1/21 Up to 12 weeks of paid family leave (PFL) per benefit year:• To bond with EE’s newly born, newly adopted, or newly placed foster child within 12

months of the date of the birth, adoption or placement• To address a qualifying exigency caused by a family member being called to active

military duty.

1/1/21 Up to 26 weeks of PFL per benefit year to care for a family member who is injured in the line of active duty (“covered servicemember”)

7/1/21 Up to 12 weeks of PFL to care for family member with serious health condition

26 weeks combined maximum per benefit year PML and PFL

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MA PFML milestones that have already passed

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Date SubjectSeptember 30, 2019 Written notification should have been provided to EEs (by ERs) and the state

mandated poster on display.• If you missed this deadline, you should provide notice ASAP!• You also have to provide notice going forward to all new employees within 30

days of employment or if you change your plan.

October 1, 2019 If ERs intend to require EEs to pay the EE share of the PFML premium, they should have begun payroll deductions for MA PFML premium contributions from EE payroll on 10/1/19. • If you missed the deadline, you can start EE premium deductions from payroll

prospectively. • You may not go back and deduct “back” premium you failed to deduct.

You can use Sun Life’s employee notification template. Find it on sunlife.com/pfml. Choose the Massachusetts icon.

Impending MA PFML deadlines

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Date SubjectDecember 20, 2019 Date by which a private plan exemption application must be approved by the MA

Department of Family & Medical Leave (MA DFML) so that you can keep the first Quarter and subsequent premium for use with a private plan (rather than have to remit the premium to Commonwealth).

• If you miss this deadline, you may still apply for a private plan exemption.

• You will owe premium to the Commonwealth for each quarter until the first of the quarter after your private plane exemption is approved.

• Example: If your application for private plan exemption is approved by DFML on 1/10/20, your private plan would go into effect on 4/1/20 and you would owe premium to the Commonwealth through 3/30/20.

January 31, 2020 Date ERs remit first EE and ER premium payments to Commonwealth.• ERs who are approved for a private plan exemption on or before 12/20/19 do not

have to submit premium to the Commonwealth.

Legal/financial issues and resources

Emotional stress, depression

Marital/family issues

Behavioral health or substance abuse

Work-life needs and resources

Health care navigation

About the MA PFML employee notice obligations• Must be written in the EE’s primary language.• MA PFML law states that ER must obtain from each EE a written

statement acknowledging receipt of the notice or a statement indicating the EE’s refusal to acknowledge the notice. – Per DFML, as long as EEs have an opportunity to sign acknowledgment, delivery is

complete if ER can prove it sent the notice.

• The notice may be sent by email.• The notice must contain: An explanation of the availability of family and medical leave benefits The EE’s and ER’s contribution amount and obligations If the benefits are being provided through a private plan, a description of

the private plan The ER's name and mailing address, and tax ID number Instructions on how to file a claim for family and medical leave benefits The mailing address, email address, and telephone number of DFML

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RESOURCES AT MASS.GOV

• Paid Family and Medical Leave

workplace postermust be in a highly-

visible location

• Employee notice template

Find both in multiple languages by visiting:

www.mass.gov/info-details/informing-your-workforce-about-paid-

family-and-medical-leave

Issue Comments

Which workers must be given the notice?

• Notice is required for W-2 EEs

• If more than 50% are 1099 independent contractors, you must provide them notice

• New hires must be provided with individual notice within 30 days of start of employment

What if you have not yet decided whether to offer the benefits through a private plan?

• If you are unsure about who will administer the plan or whether you will collect EE contributions, you can say that and revise the notice later.

What are the consequences of failing to provide the employee notice?

• Failure to provide the required notifications may result in fines.

1st violation: $50 per W2/1099-MISC contractor

Subsequent violations: $300 per W2/1099-MISC contractor

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Additional Issues regarding the employee notice

MA PFML administration: State program compared to private plan administration

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Employers may provide MA PFML benefits through a private plan• Private plans may be provided for paid medical leave

(PML) or paid family leave (PFL) or both PML and PFL• Private plan may be fully insured or self-insured• Requirements of a private plan:⎻ May not charge EEs more than authorized by statute⎻ Must provide at least the same benefits as MA PFML law⎻ Must provide job protection and health insurance continuation⎻ Must state, among other things, that all presumptions shall be made in favor of the

availability of the leave and the payment of the leave benefits• Applications for private plan exemptions must be approved by DFML. Private plan

exemption approvals are effective for one year only, and may be renewed12

State administration of MA PFML vs. private plan administration

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With the state plan, EEs file MA PFML claims with the DFML. All other EE benefits/leaves are administered separately.

MA PFML

STDLTD

Other paid and unpaid leaves

ADA accommodations

With a private plan you can administer MA PFML with all of your EE benefits and leaves.

MA PFML STD LTD Other paid and

unpaid leaves ADA

accommodations

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Coordination of benefits among MA PFML, Short-Term Disability, other leaves, and ER sponsored leaves (paid and unpaid)

Short-Term Disability income replacement to complement MA PFML coverage

Excellent claims management and access to return-to-work services

Compliance guidance on MA PFML and other leave issues

Ability to consult on solutions if you want to enhance the benefits under the MA PFML law

The benefits of adding MA PFML to your Sun Life lines of coverage

Enhanced PFML as a future consideration for private plans: A look at Sun Life as an employer

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Private plans allow employers to integrate the minimum statutory PFML benefits with their more generous employee benefit offerings.

The 16 weeks of Paid Family Leave are annual allotments and the 26+ weeks of Paid Medical Leave are available per claim.For employees with more than 1 year of service, the first 16 weeks of Family Leave and Medical Leave are at 100% pay with any remainder paid at 60%. For employees with less than 1 year of service, the first 2 weeks are at 100% pay with the remainder at 60% pay.

16WEEKS

FAMILY LEAVE(all parents, caregivers and others)

24WEEKS

BIRTH PARENTS8 weeks medical leave + 16 weeks family leave for bonding

26+ WEEKS

MEDICAL LEAVE(your own personal needs)

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How to apply for a private plan

How to apply for a private plan• Application is available on MassTaxConnect on

Department of Revenue website. • Application questions can be seen on DFML website.• ER must state whether the private plan is for medical

leave, family leave or both benefits.• ER must advise whether the private plan is fully

insured or self-insured.⎻ If self-insured, ER will be required to post a bond.

• ER must answer certain questions to show that the plan will comply with MA PFML.

• The DFML has indicated that it will be able to review and rule on plans in 1 to 2 business days.

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We encourage you to watch the Video Tutorial on applying for Private Plan Exemptions

Fully-insured and self-insured MA PFML private plan application requirements

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Type of Private Plan Requirements

Self-insured • ER can administer or can hire TPA/Insurer to administer• Must upload MA PFML Private Plan as part of application for

exemption• Must post a bond (see next slide)

Fully insured • Must upload Declaration of Insurance that is signed by ER and insurer

• Ultimately, ER will have to upload the actual insurance policy.

Legal/financial issues and resources

Emotional stress, depression

Marital/family issues

Behavioral health or substance abuse

Work-life needs and resources

Health care navigation

Bond requirements for self-insured MA PFML Private Plans

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RESOURCES AT MASS.GOV

Find bond requirement information at:

www.mass.gov/info-details/bond-requirements-for-

approved-self-insured-plans

BOTH THE EMPLOYER AND THE SURETY SIGN

THE BOND FORMBoth ER and surety that is

authorized to transact business in Commonwealth must complete and

sign the bond form which is uploaded with the ER’s private plan

exemption application

MA PFML Private Plan

Amount of bond

PML & PFL ER’s 2018 Average Workforce Count X2018-2019 SAWW ($1,383.41) X2019 MA PFML Contribution Rate (0.0075) X 52 weeks.

PML only ER’s 2018 Average Workforce Count X $1,383.41 X 0.0062 X 52 weeks

PFL only ER’s 2018 Average Workforce Count x $1,383.41 x 0.0013 X 52 weeks

Interaction of Short-Term Disability & MA PFML

20SHORT-TERM DISABILITY

Benefit MA PFML Typical STD plan

Eligibility • Available to full-and part-time EEs who are eligible for unemployment compensation

• Terminated EEs are eligible for up to 26 weeks post-termination

• Usually minimum hours of approx. 30 hours per week

• No coverage if claim arises post-termination

Standard of incapacity

Leave for an EE who cannot work because of a serious health condition

Totally or partially disabled

Period of leave Intermittent leave permissible (in 4 hour increments) Continuous.

Amount of benefit Tiered. Lower-Wage earners receive 80%. Higher-wage earners receive a 65% equivalent

Typically 60-70%

Special limitations None are allowed Many EEs paid STD plans have preexisting condition requirements

Waiting Period There is a 7-day waiting period but not if the leave is because of pregnancy/childbirth immediately followed by family leave

Many STD plans do not forgo elimination period for pregnancy

Documentation that can be required

Limited certification from health-care provider All medical records

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Question #1: Does my STD plan qualify as a medical leave private plan under the MA PFML? Answer: Probably not

Question #2: Do I still need an STD program? Answer: Yes, to prevent gaps in coverageDropping STD may leave EEs without sufficient protection if they become disabled

Evaluation Issue Consideration

There is benefit cap of $850 per week under MA PFML

The MA PFML benefit caps out for those who make $66,818.80 per year. If you have higher earners, your STD benefits may provide more suitable benefits for those persons.

The allotments of paid family leave and paid medical leave under MA PFML are interdependent

• If an EE takes 12 weeks of paid family leave, the EE will only be eligible for 14 weeks of paid medical leave in the same year.

• EEs would not be adequately protected during an LTD Elimination period without private STD.

MA PFML is available intermittently and STD is not

• Because MA PFML can be taken intermittently, an EE could exhaust all available paid leave benefits before need for STD.

• EEs would not be adequately protected without private STD.

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Coverage gap:

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WHO’S ON YOUR WORKFORCE?

Coverage gaps occur for talent earning more than $66,819 per year

Higher-wage positions1

• Physicians, Specialists, Dentists• Nurse Practitioners• Lawyers• Computer and Information Systems

Managers• Software Developers• Computer Analysts• Architectural and Engineering Managers• Sales Managers• Financial Managers• Human Resource Managers

The $850 MA PFML benefit cap is insufficient for higher-wage earners.

Why MA PFML and Disability work better together: Short-Term Disability Insurance tops up the MA PFML benefit to provide complementary income replacement.

EXAMPLE: • EE earns $100,000. • On maternity leave with

MA PFML only, she’ll receive the maximum MA PFML weekly benefit of $850 (a 45% benefit).

• If you keep Short-Term Disability, she would receive $1,154 (a 60% benefit).

$1,154 total benefit

with STD

$304 coverage gap without STD

$850 PFML

1. Bureau of Labor statistics

Coverage gap:

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Why MA PFML and Disability work better together: Short-Term Disability typically starts one week after the disabling event, and seamlessly transitions the EE to Long-Term Disability if needed.

EXAMPLE: • An EE’s mother had a

stroke and requires care for 12 weeks.

• After returning to work this EE was diagnosed with stage IV cancer.

• She cannot work. • If your plan’s Long-Term

Disability benefit starts at 180 days (26 weeks) from the disabling event, she only has 14 weeks of medical leave available.

12 weeks MA PFL 14 weeks MA PML

12 weeks no pay if no STD

LTD starts

The allotments of paid family and medical leave are interdependent. The 26-week combined MA PFML maximum can mean periods of no income until Long-Term Disability starts.

Coverage gap

• MA PFML may be taken on an intermittent or reduced schedule leave basis.

• Without Short-Term Disability coverage, EEs can reduce or exhaust paid medical leave benefits before Long-Term Disability income starts.

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Disability policies provide additional benefits like return-to-work benefits

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Sun Life’s clinical model for complex claims

Interdisciplinary team collaborates early to build an individualized action plan

Outcomes of proactiveduration management:

Actionable return-to-work plansReasonable accommodation support

Return to productivity

EE receives foundational support from ER and treating provider

How will Sun Life’s STD benefits interact with MA PFML benefits?• Sun Life will offset the amount of the MA Paid

Medical Leave benefit against the Short-Term Disability benefit in circumstances where the EE is eligible for both MA PML and Short-Term Disability.

• We recognize that the offset will, in all likelihood, impact the rates that should be charged for Short-Term Disability .

• It is difficult to predict how often this will occur because of the interdependency of the medical and family allotments and because of the unknown incidence rate of intermittent MA PFML.

• We are evaluating 1/1/2021 Short-Term Disability pricing and will keep you informed of potential solutions.

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Overview of MA PFML law

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MA PFML law: Leave Reasons & Covered Family Members

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FAMILY MEMBER COVERAGE IS BROADER THAN FMLA Family members: spouse, domestic partner,

child (of any age), parent or parent of a spouse

or domestic partner, person who stood in loco

parentis to EE when EE was a child, or a child

to whom EE stands in loco parentis; grandchild,

grandparent or sibling

Family Leave:• To bond with the EE’s newborn, newly adopted or newly

placed foster child within 12 months of the birth, adoption or foster care placement

• To care for a covered family member with a serious health condition

• For a qualifying exigency when the EE’s family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces

• To care for a family member who is injured while on active military duty

Medical Leave:• Can be taken for the covered individual’s own serious

health condition that renders the covered individual unable to perform the functions of his or her position.

FMLA: child (minor child or adult child incapable of self-care due to disability), parent, spouse (& in loco parentis)

Who is considered a Massachusetts employee? • The DFML regulations define a covered EE as a person who works in MA.• When the EE’s services are performed inside and outside of MA, the EE may be a

covered EE.⎻ Under the regulations, if the service is performed both inside and outside of the Commonwealth, but

the service performed outside the Commonwealth is incidental to the individual's service within the Commonwealth, the EE is a covered individual for MA PFML.

• The EE may still be a covered individual if the EE’s services are not localized in any state, but some part of the services are performed in MA and⎻ The EE’s base of operations is in MA or, if there is no base of operations, then the place from which

such services are directed or controlled is within MA, or

⎻ The EE’s base of operations or place from which such services are directed or controlled is not in any state in which some part of the service is performed, but the individual's resident state is MA.

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Examples# Variables Covered under

MA PFML?1 EE lives in MA and works in New Hampshire No

2 EE works in MA and lives in New Hampshire Yes

3 EE works in Florida for a MA-based ER No

4 EE works in MA for a Florida-based ER Yes

5 • EE is a sales representative and territory includes all New England states• EE spends time evenly among all NE states

– Variation #1/Assume: ER is located in MA Yes

– Variation #2/Assume: ER is located in Florida No

– Variation #3/Assume: EE lives in MA and ER is located in Florida Yes

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• EE has been paid wages in the 4 quarters prior to leave amounting to at least 30 times the weekly benefit rate and at least $4,700 by any MA ER.– MA PFML eligibility is portable from one MA

ER to another– Wages earned at prior MA ER must be counted when

determining eligibility

• EEs can continue to apply for PFML benefits for up to 26 weeks after termination of employment

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MA PFML law: Employee Eligibility

MA PFML law: Annual Allotments

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Type of Leave Annual benefit year allotment

Medical (EE’s own serious health condition) 20 weeks

Family (Bonding with new child, care for family member with serious health condition or qualifying military exigency)

12 weeks

Family (Injured servicemember) 26 weeks

Maximum Combined Family/Medical 26 weeks

Leave calc. method: “Benefit year” is measured forward 52 weeks from the Sunday preceding the first day of the EE’s covered leave.

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Funding Family leave premium: 100% paid by EEMedical leave premium: Paid 40% by EE, 60% by ERTotal premium: • 0.63% of EE’s wages up to max Social Security limit• Premium rate was increased to .75% when payroll deductions were

delayed from 7/1/19 to 10/1/19 to “make up” lost premium.• We thought it would be temporary but no specified date when

premium will be reduced.

SmallER exception

ER’s with fewer than 25 EE’s in MA are exempt from ER contributions. ER is responsible for collecting and remitting EEs’ share of premium regardless of ER size.

MA PFML law: Funding by EE and ER payroll deductions

Contribution rate split for ERs with 25 or more covered individuals

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Image from MA PFML website –reflects the increase in premium to 0.75%

0.75% payroll deduction (100%)

0.62% payroll deduction (82.5%)

0.13% payroll deduction (17.5%)

60% of medical leave (Minimum share)

40% of medical leave (Maximum share)

0% of family leave (Minimum share)

100% of family leave (Maximum share)

Employer share

Total contribution

Medical leave contribution

Covered individual share Employer share Covered

individual share

Family leave contribution

Quarterly reporting and remittance of premium

• Quarterly reporting: ERs must remit the first EE and ER quarterly premium payments for the October 1 to December 31 quarter through MassTaxConnect (MA Dept. of Revenue website for filing/paying taxes) by January 31, 2020. – Required information includes: Name, SSN, age, and paid or other

earnings for each EE

• Calculation of premium: Based on that Employment and Wage Detail Report, DFML will calculate total quarterly contribution owed by the ER which must be remitted.

• To our knowledge, there are no reporting requirements for private plans.

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MA PFML law: Waiting Period

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There is a 7 consecutive day unpaid Waiting Period exceptif the EE takes leave during pregnancy or childbirth and immediately takes family leave thereafter.• The 7-day Waiting Period is part of annual MA PFML allotment.

– MA DFML has indicated that it wants to change this so that Waiting Period is not part of the annual allotment.

– May require statutory amendment• The regulations stipulate that EE must satisfy 7-day Waiting Period for

each leave. • The regulations create a process for extending a leave and, if properly

extended, there is no new 7-day Waiting Period.

MA PFML law: Benefits

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Benefit % 80% of the EE’s wages, up to 50% of the state average weekly wage (SAWW), and any portion of the EE’s wages that may be over 50% of the SAWW will be paid at 50%. Current SAWW: $1,383.41/week ($71,937.32/year)

Benefit max Max benefit payment would be $850.00 per week based on this model.

Future max Max weekly benefit amount will be adjusted to be 64% of the SAWW by October 1 of each year and will be effective on January 1 following such adjustment.

• DFML has indicated that it is not certain and has reached out to the IRS. Is awaiting guidance.

• In NY, PFL benefits are taxable as 1099 income, and NY PFL premiums are deducted from EE payroll on a post-tax basis.

• If an ER chooses to pay the EE portion of the MA PFML premium, this may be taxable income to EE’s.

• Consult a tax advisor.

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What are the tax implications of MA PFML benefits?

MA PFML law: Job restoration & EE benefits

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• Job restoration rights: prior job position or equivalent position with same status, pay and other benefits.

• Continued Health benefits:– During MA PFML, ERs must continue health insurance

benefits (EE must make EE contributions to premium).

• Upon reinstatement, the taking of MA PFML shall not affect:– The EE’s right to accrue vacation time, sick leave, bonuses,

advancement, seniority, length of service credit or other employment benefits, plans or programs.

– Time on leave need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate.

• If the need for leave is foreseeable, EE must give ER at least 30 days prior notice.

• If not foreseeable, EE must give ER notice as soon as practicable.

• Under the regulations, ER can enforce usual and customary call-in requirements absent unusual circumstances.

• When planning medical treatment, EE must consult with ER and make a reasonable effort to schedule the treatment in a way that does not unduly disrupt the ER’s operations subject to approval of health care provider.

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EE notice requirements

MA PFML law: Intermittent or reduced schedule leave

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When is intermittent or reduced schedule leave available?• To bond with a new child is available only

by agreement between ER and EE• To care for family member with serious

health condition or injured servicemember, or for EE’s own serious health condition is available “when medically necessary”

• For qualifying exigency: anytime

The regulations provide that the minimum increment for intermittent leave is one hour. ERs can set leave increments as long as they do not

exceed 4 consecutive hours.

• If EE is eligible under both MA PFML and FMLA and the leave reason is covered under both laws, the leaves will run concurrently. ⎻ If the leave is eligible under one law but not the other, the leave will run only

under the applicable law.

• Note: MA PFML provides that EEs who take MA PFML leave while ineligible for leave under FMLA may take leave under the FMLA in same benefit year only while they remain eligible for concurrent leaves under MA PFML. ⎻ While MA PFML law contains this provision, Sun Life believes this provision may

be unenforceable because state laws are not permitted to dictate when leave under a federal law is available.

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How does MA PFML interact with FMLA?

Element MA PFML FMLAFamily Member

Spouse, domestic partner, child under age 18 and disabled child over age 18, parent or parent of spouse or parent of domestic partner, someone who stood in loco parentis to the EE when they were a minor or someone to whom EE stands in loco parentis, grandchild, grandparent or sibling of the EE.

Parent, spouse, child under age 18 and disabled child over age 18. The FMLA also includes the concept of in loco parentis.

Leave Durations

12 weeks family leave except it includes up to 26 weeks for care of an injured service member and provides 20 weeks medical leave for the EEs own serious health condition. There is a combined maximum of 26 weeks available per benefit year.

Up to 12 weeks for all reasons except care of an injured service member (who would be provided up to 26 weeks). Combined maximum of 26 weeks per year.

Leave year method

“Benefit year” defined as 52 consecutive weeks beginning on the Sunday immediately preceding the first day of job-protected leave

Four methods from which ER can choose: the fixed date; rolling forward; rolling backwards; or calendar year leave year method.

Intermittent leave

ER can set minimum increment but no greater than 4 hours Smallest increment of time tracked for payroll and must be no greater than one hour.

Eligibility Any EE who meets requirements of eligiblity for MA unemployment compensation (for any ER in MA) is eligible.

EE must have worked for ER for at least 12 months, worked 1,250 hours in year preceding leave, and work at a location with 50 or more EE’s within 75 miles.

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Differences between MA PFML & FMLA

MA Parental Leave:• Provides 8 weeks of

unpaid job protected leave from work for bonding with a newborn or newly adopted child. – Available to full-time EEs who have worked at least

3 consecutive months for ER (or completed express probationary period).

– Applies to ERs with six or more EEs in the state of Massachusetts.

– 8 weeks per child born (e.g., if twins, 16 weeks)

• The MA PFML and MA Parental leave laws will run concurrently where both apply.

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MA Earned Sick Leave:• Enables EEs to earn up to

40 hours per year of sick leave to address certain personal and family needs.

• The MA PFML and MA earned Sick Leave will run concurrently when the leave is for a qualified reason under both laws.

• However, MA PFML says ER cannot force use of paid time off

Interaction with MA Parental Leave & MA Earned Sick Leave

MA PFML law: Interaction with Other Benefit programs • MA PFML weekly benefit

will not be reduced by wage replacement EE receives under a temporary disability policy or program of an ER or a paid family or medical leave policy of ER unless the aggregate amount received exceeds the EE’s average weekly wage.

• If ER makes payments to an EE that are equal to or greater than MA PFML statutory benefit, ER “shall be reimbursed” out of any MA PFML benefits due for same period of MA PFML.

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MA PFML weekly benefit will be reduced by amount of wage replacement received under:• Any government program or law including

worker’s compensation (but not for permanent partial disability incurred prior to the MA PFML claim);

• Under other state or federal temporary or permanent disability benefits law; or

• A permanent disability policy or program of an ER.

MA PFML law: What about ER PTO and Paid leave policies?MA PFML law:

Does not remove an ER’s duty to comply with any company policy, law or Collective Bargaining Agreement (CBA) that provides for greater rights.

May not be construed to allow an ER to compel an EE to exhaust rights to any sick, vacation or personal time prior to or while taking leave under MA PFML law.

– What about FMLA? If the leave runs concurrently, ER can force EE to use PTO during FMLA leave

– In New York, the WCB said that the FMLA “trumps” the state law

EE may choose to use PTO – Top ups appear to be allowed

– If EE uses full day in amount equal to or greater than PFML benefit, the EE is not eligible for PFML benefits

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An ER may require that MA PFML benefits be made concurrently and coordinated with payment under an ER’s disability or PFL policy or CBA

Any leave provided under a CBA or ER policy that is used by an EE for a covered reason and paid at the same or higher rate counts against MA PFML allotment (if ER gives EE written notice to that effect).

CBA: Collective Bargaining Agreement

MA PFML claim administration timelines/appeals• Within 5 business days of filing of claim, DFML will

notify ER of the filing of claim and notice will contain:

– EE’s name; type of PFML requested; expected duration of leave; whether request is for continuous or intermittent leave and Other relevant information

• Within 14 calendar days of filing of claim, DFML will notify EE of (1) approval or denial, or (2) need for additional information

– Regulations stipulate that the DFML will provide notice of approval to ER at the same time as notice to EE

• Within 14 calendar days of approving a claim, leave payments will begin unless commencement of leave is more than 14 calendar days after approving application and then benefits will begin on date leave begins

• Within 10 calendar days of receipt of denial, EE must file an appeal with DFML

• Within 30 days of hearing on appeal, DFML will issue a final decision on appeal

• Within 30 days of final decision, EE may file a civil action

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MA PFML law: Certification requirements

Type of Leave Certification Required

Medical Leave (EE’s own serious health condition (SHC)

Medical certification by health care provider (HCP) stating:• Date on which SHC commenced • Probable duration of SHC, and • Certification that EE is incapacitated from work due to SHC and information

regarding need for intermittent leave, if applicable

Family leave to care for family member with SHC

Medical certification by HCP stating:• Date on which SHC commenced • Probable duration of SHC • Statement that EE is needed to care for family member, and• Estimate of frequency and duration of time that EE is needed to care for

family member

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SHC: Serious health conditionHCP: Health care provider

MA PFML law: Certification requirements

Type of Leave Certification Required

Family leave for birth of child

• Birth Certificate, or• Document issued by HCP of the child, or• Document issued by HCP of person who gave birth

Family leave for adoption or foster care placement

• Document issued by HCP of child, an adoption or foster care agency or by other individual identified by the Department that confirms date of placement.

Family leave for qualifyingmilitary exigency

• Copy of family member’s active-duty orders or other documentation issued by Armed Forces or other documentation permitted by the Department

Family leave to care for injured service member

• Same medical certification as for leave to care for family member with SHC and• Attestation by EE that the SHC is connected to the covered servicemember’s

military service

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SHC: Serious health conditionHCP: Health care provider

Employer liability under the MA PFML• MA PFML provides a private right of

action against ER who violates MA PFML job restoration or anti-retaliation and anti-discrimination provisions.

• Three year statute of limitations.• EE can recover triple damages for lost wages,

benefits and other remuneration.• EE can recover attorney's fees.

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If adverse action is taken against an EE within 6 months of PFML, there is a

presumption of retaliation that must be rebutted by clear and convincing evidence.

More sources of information about MA PFML• Visit us at sunlife.com/pfml

– Click on Massachusetts or any other state.

– A recording of this webinar will be posted to the Massachusetts page.

• Visit mass.gov/dfml

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Consider Sun Life for private plan administration of your Fully Insured or Self-Insured MA PFML plan alongside your already existing group benefits policy with us.

This content is not to be considered legal advice. We recommend Clients speak with legal counsel specializing in labor and employment law to ensure your organization has met all of the requirements under the Massachusetts Paid Family & Medical Leave (PFML) Act.

When available, Sun Life’s fully insured and self-insured MA PFML solution will be administered by Sun Life Assurance Company of Canada. The self-insured service is not insurance. Subject to regulatory approval.

© 2019 Sun Life Assurance Company of Canada, Wellesley Hills, MA 02481. All rights reserved. Sun Life Financial and the globe symbol are registered trademarks of Sun Life Assurance Company of Canada. Visit us at www.sunlife.com/us.

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