Significant Changes to Massachusetts Paid Family Leave Coming on November 1, 2023

Beginning on November 1, 2023, employees receiving paid benefits under the Massachusetts Paid Family and Medical Leave law (PFML) can supplement, or “top off,” the state paid benefit with other accrued paid time off such as vacation, personal, sick time, or a combined PTO (paid time off) benefit. Employers with employees living or working in Massachusetts must review and update their policies accordingly.

Under prior versions of the PFML regulations, employees receiving paid PFML benefits were only permitted to use other accrued paid time off to supplement the initial unpaid seven-day waiting period of the leave, but could not use such accrued time to supplement their pay up to 100% during the pendency of PFML leave. The new rules will allow employees to do just that, provided that they do not exceed a combined weekly sum equal to their Individual Average Weekly Wage (IAWW).

The IAWW is the average amount an employee earned per week in the two quarters when the employee earned the most money (or the one quarter with the most money if the employee only worked in two or fewer quarters). The IAWW is calculated by the Massachusetts Department of Family and Medical Leave (DFML) based on the amounts an employee earned in the last four completed calendar quarters before the start of the employee’s PFML benefit year.

The decision to use accrued paid time off to top off a PFML benefit lies solely with the employee. Employers cannot require employees to use their accrued paid time off. However, employers will be responsible for ensuring that any topping off does not result in an employee exceeding their IAWW. Registered DFML Leave administrators can determine the maximum amount of any top off by referring to the employee’s PFML Approval Notice to determine the weekly PFML benefit rate and IAWW, and deducting the weekly benefit amount from the IAWW. There is no obligation to report top offs to the DFML.

The ability to top off is dependent upon the PFML application date. Only those applications filed on or after November 1, 2023, even if the leave began prior to November 1, 2023, are eligible to be topped off.

The maximum weekly benefit funded by DFML in 2023 is $1,129.82. The amount will increase to $1,149.90 effective January 1, 2024, with a corresponding increase in the employer contribution rate. For employers with 25 or more employees, the 2024 contribution rate will increase from 0.63% to 0.88% of eligible wages; this contribution is divided between the employee’s payroll withholdings and an employer contribution. For employers with fewer than 25 employees, the rate will increase from 0.318% to 0.46% of eligible wages, typically contributed entirely through employee payroll withholding.

Employers with employees in Massachusetts should review and revise their policies to comply with the new requirements. The Labor, Employment & OSHA attorneys at ArentFox Schiff continue to monitor PFML developments. For questions, please contact one of the authors or the ArentFox Schiff professional who usually handles your matters.


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