Massachusetts requires that employers with employees in Massachusetts contribute to the Massachusetts Paid Family and Medical Leave Program (“MA PFML”). The program provides employees up to 26 weeks of job-protected combined family and medical leave per year and is funded by employee contributions and employer contributions (from employers with 25 or more Massachusetts employees).

Massachusetts employers have been reporting an uptick in audit requests from the Massachusetts Department of Family and Medical Leave (“DFML”) in late 2023 and early 2024. This article outlines ongoing requirements for Massachusetts employers under the MA PFML program and an overview of the audit process.

Notice Requirements

The Family and Medical Leave Act requires employers to provide notice to employees in several forms. Employers must:

  • Post the PFML poster in a conspicuous location in Massachusetts worksites
    • The poster must be posted in English and any language that is the language of 5 or more individuals in the workplace
    • The poster must be distributed to any remote employees subject to MA PFML. This may be accomplished electronically, by email or by posting on a company website
  • Provide new employees subject to MA PFML a notice within 30 days of hire.
    • Employees must acknowledge receipt of this notice
    • Employers should maintain evidence of notice acknowledgements for current employees
  • Provide employees with information on any contribution rate change 30 days in advance of the change (by December 1 for any changes effective January 1)

Note for Sequoia One PEO Clients: Sequoia One displays a MA PFML Notice in the Onboarding Workflow and collects acknowledgements (intended to assist with the new hire notice requirement). In addition, we provide clients access to the Labor Law Center, which provides posters containing the state required notices. Clients are responsible for posting physical posters and distributing digital copies to remote employees. Clients are also responsible for distributing annual rate change notices prior to December 1.

Concurrent Benefits and Leave Top-Off

In October 2023, the MA PFML law was amended to allow employees to “top-off” state-provided PFML benefits with employer-provided paid leave, as long as the total amount an employee receives in benefits per week does not exceed 100% of their individual average weekly wage (an amount calculated by DFML based on the employee’s earnings in the year prior to applying for benefits). DFML then issued guidance clarifying that an employee may choose to use employer paid leave to top-off PFML benefits subject to the accrual and use rules of the employer’s PTO policy.

Because MA PFML applies to employers of any size, employers who are not subject to FMLA may still be required to provide MA PFML benefits. For employers with employees that are eligible for FMLA, PFML and FMLA run concurrently. It is important to note that PFML requirements may exceed the duration and scope for FMLA benefits. For PFML-eligible employees that are taking FMLA leave and are notified of their right to take paid family and medical leave, the employee’s PFML “time bank” begins running when the leave starts, regardless of whether the employee files for PFML benefits.

Audit Process

Massachusetts employers have recently reported receiving “Notices of Investigation into Compliance with Mandatory Notice Requirements” by email. The email appears to be sent to the party who was recorded as the contact person when creating the employer’s MassTaxConnect account, regardless of whether the employer has different contact information on file for DFML related matters. Responses are due within 15 days of receiving the notice and are uploaded to the Investigation Online Portal.

DFML requires employers to respond with evidence of compliance with notice requirements, including evidence that a poster has been posted in any physical locations and evidence that the required notices have been distributed to employees. The employer must provide information on additional any additional employers reporting under the relevant FEIN and a certification affirming that they have complied with the mandatory notice requirements. A failure to respond to the investigation in a timely manner could result in civil fines up to $50 per employee (for the first failure) and $300 per employee for the second failure to respond. Employers that receive a civil fine notice have 10 days from the date of the notice to file a Notice of Appeal with DFML.

Employer Action Items

  • Provide eligible employees with the proper notices and comply with the physical and digital poster requirement
  • Maintain records of acknowledgement of the new hire PFML notice for current employees
  • Regularly review and update representative contact information in MassTaxConnect
  • Make HR personnel aware of the importance of prompt responses to any notices received by DFML

Additional Resources

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog. © 2024 Sequoia Consulting Group. All Rights Reserved. 

Hailey Trippany — Hailey is a Compliance Specialist for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Hailey enjoys podcasts, baking, travel, and kayaking.