Question

So far, all our employees who have taken leave under the Massachusetts Paid Family Medical Leave law (PFML) have used sick time or paid time off (PTO) to cover the one-week waiting period. For the first time, an employee refuses to do that, claiming the law allows him to opt out. This differs from our experience with the federal Family and Medical Leave Act (FLMA). Since we have more than 50 employees, most of our leaves are also covered by FMLA. Can’t we require the use of PTO for the waiting period because we are running the two leaves concurrently?  Additionally, with the “top off” of PFML benefits, can’t employers require the use of PTO during a PFML leave?

Answer

Many employers struggle with the compliance nuances of the Massachusetts Paid Family and Medical Leave Act (PFMLA).

Most questions regarding PFMLA may be answered by referencing the agency’s regulations. However, in this case, we had to expand our search back to the original law and the Frequently Asked Questions posted on the state’s Department of Family and Medical Leave website.

An employee may not be required to use PTO or sick time during the one-week waiting period. It is the employee’s option to do so.  M. G. L. Chapter 175M, § 3 includes the following provisions regarding the waiting period and the use of vacation pay or accrued sick time:

• No family or medical leave benefits shall be payable during the first 7 calendar days (statutory waiting period) of such leave; provided, however, that an employee may utilize accrued sick or vacation pay or other paid leave provided under an employer policy during the first 7 calendar days of such leave. Employees taking family or medical leave for which benefits are not payable under this subsection shall be entitled to the protections of subsections (e) and (f) of section 2 (job protection benefits) and section 9 (anti-retaliation protections).

The statute is also clarified in the department’s FAQ:

1. Can employees receive paid PTO during their 7-day waiting period?
2. Employees may use their accrued PTO during their waiting period.

Regarding your other questions, the FMLA does allow employers to require employees to use vacation or sick time.  However, keep in mind the federal law provides for unpaid benefits, not paid benefits. A question on the US Department of Labor website addresses this issue directly.

(Q) Is my employer required to pay me when I take FMLA leave?

1. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.

It is strongly recommended that an employer run FMLA and PFML leaves concurrently when the leave qualifies for both.  However, an argument that the FMLA provision described above supersedes the PFML law and enables the employer to require the use of vacation or sick time for the waiting period may end up in court with the employer being accused of violating the state leave law.

The Massachusetts PFML and Topping Off Benefits

The PFML law was recently revised to allow employees to supplement PFML benefits with PTO. MGL c.175M §3(c) addresses the issue of employees using their PTO or sick time to top off claims filed with DFML:

The weekly benefit amount shall not be reduced by the amount of wage replacement that an employee receives while on family or medical leave under any of the following conditions, unless the aggregate would receive would exceed the employee’s average weekly wage: (i) a temporary disability policy or program of an employer; (ii) a paid family or medical leave policy of an employer; or (iii) any accrued sick or vacation pay or other paid leave provided under an employer policy, including, but not limited to, any leave provided under a collective bargaining agreement. [emphasis added]

In sum, the PFML leaves it to the employee to decide whether to supplement PFML benefits with PTO at any time during leave, including during the seven-day waiting period.

Additional Resources

Read more about the PFML topping off process.

Any AIM member interested in discussing this or any other HR related matter may contact the AIM Helpline at 1-800-470-6277 or via email at helpline@aimnet.org.

If you need to learn more about leave policies or harmonizing them, reach out to AIM HR Solutions. Our experts are ready to help you succeed. www.AIMHRSolutions.com