In the enacted state budget, the Massachusetts legislature has amended the Massachusetts Paid Family and Medical Leave Act (PFMLA) to provide employers and employees more flexibility to use other accrued benefits to supplement paid benefits employees receive from the state. The new law is effective November 1, 2023.

            Currently, the state-provided maximum weekly benefit for individuals on PFMLA leave is $1,149.90. Individuals wishing to supplement this state-paid PFMLA benefit may use funds from (1) a temporary disability policy or program of an employer or (2) a paid family or medical leave policy of an employer (such as a paid parental leave policy). The Department of Family and Medical Leave does not allow employers to “top off” or supplement PFMLA benefits with payments from sick leave policies, vacation policies, or general paid time off (PTO) policies. An employee could not receive more than 100 percent of their average weekly wage. If an employee received payments from any of those policies, the state would not pay any PFMLA benefits during the leave.

            With the amendment, employers and employees may supplement the PFMLA benefit payments with “any accrued sick or vacation pay or other paid leave provided under an employer policy” up to 100% of the employee’s average weekly wage. Accordingly, employers can supplement the PFMLA benefit with accrued sick, vacation, or other paid leave for all applications received after November 1, 2023 (even if the leave began prior to November 1, 2023).

            Significantly, other parts of the law were not changed. An employer cannot require an employee to use accrued sick, vacation, or other paid leave benefits to top off the PFMLA benefit; the employee must be allowed to choose to use the benefit.

            Relatedly, the Department of Family and Medical Leave has announced that it is the employer’s responsibility to monitor the amount of money paid to the employee with the supplementation to ensure the employee is not paid more than 100 percent of the average weekly wage. In addition, the Department has stated that it will not reimburse any overages, as that is the employer’s responsibility.

            The amendment provides employees the ability to use accrued benefits to receive more than the maximum weekly benefit during a PFMLA leave. This may encourage employees to use more of the available PFMLA time.

            Employers should review their sick leave, vacation leave, and PTO policies to ensure compliance with the PFMLA and to make clear when and how an employee can seek to “top off” benefits.