The Massachusetts Paid Family and Medical Leave (“PFML”) law now permits employees to “top off” benefits received through the state Department of Family and Medical Leave (“DFML”) with employer-provided accrued paid time off (e.g., vacation, PTO, or sick time).  This new change allows employees to elect whether to supplement their PFML benefits with paid time off.  Employers still cannot require employees to use their accrued paid leave either before or while on PFML; it is up to employees to elect whether or not to supplement their PFML benefits with paid time off.  This change was part of the recently passed fiscal year 2024 budget and is in effect for all new applications for PFML benefits as of November 1, 2023.

Under the original version of the PFML law passed in 2018, employees were not allowed to use accrued paid leave during any period in which they received PFML benefits from DFML.  Even though PFML benefits did not cover an employee’s full salary, the PFML law prohibited employees from using accrued paid leave to “top off” their PFML benefit.  Accrued paid leave could only be used during the 7-day unpaid waiting period.  With the new change, this prohibition has been eliminated and employees can choose to top off their state PFML benefits with accrued paid time off or, alternatively, save their accrued paid time off to use at a later time.  Employees who elect to supplement their PFML benefits with accrued paid time off may not receive an amount in excess of their individual average weekly wage (“IAWW”). 

In effect, “topping off” allows employees on PFML to supplement their weekly PFML benefit with their accrued paid time off, up to the employee’s IAWW. For example, if an employee’s IAWW is $2,000 and they have an approved PFML application that pays $1,100 per week then the employee may top off that amount with paid time off up to $900, if available. 

Employers who offer PFML through a private plan were previously permitted to allow employees the option of topping off their private plan benefits with accrued paid time off.  With this change, however, now employers who use a private plan are required to provide employees this option.

Key Takeaways for Employers

Employers should review and update their PFML policies to reflect the right of employees to top off PFML benefits and ensure compliance with the new change. 

Employers may also want to review the DFML website, which provides helpful information on the average weekly wage rate including a recently published “FAQs” page on the use of paid time off to supplement PFML benefits found here.

Employers should also look for guidance from the DFML regarding application procedures, how employees should report the use of paid time off to the DFML, and how to calculate the difference between PFML benefits and accrued paid leave so that employees who decide to top off  PFML benefits with accrued paid leave are paid correctly (and on time). The DFML offers a calculator that is helpful in estimating an employee’s benefit amount.

Questions regarding PFML may be directed to any member of McLane Middleton’s Employment Law Practice Group.  McLane Middleton will continue to monitor and provide updates on new developments under the PFML law.