Current through Register 1531, September 27, 2024
(1)
Process for Filing. A covered individual must file an application for benefits for family leave or medical leave benefits using forms prescribed by the Department. The individual may file an application for benefits with the Department no more than 60 calendar days before the anticipated start date of family or medical leave.
(2)
Required Notice.
(a) An employee or covered contract worker shall give not less than 30 calendar days notice to their employer or covered business entity of the anticipated start date of family leave or medical leave pursuant to M.G.L. c. 175M, § 2. Notice shall be provided as soon as practicable if a delay is beyond the employee or covered contract worker's control.
(b) The Department will require an employee or covered contract worker to comply with the employer's or covered business entity's usual and customary notice and procedural requirements for leave, absent unusual circumstances. An employee or covered contract worker also may be required by an employer's or covered business entity's policy to contact a specific individual to report this information.
(c) Notice of an employee's or covered contract worker's need for family and medical leave must be made to the employer or covered business entity prior to an application to the Department for family or medical leave benefits. The Department will not accept an application for benefits, unless notice to the employer or covered business entity was made in accordance with 458 CMR 2.08(2)(a).
(d) Where an employee or covered contract worker does not comply with the notice requirement in 458 CMR 2.08(2)(a) or follow the employer's or covered business entity's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, protected leave and application for benefits may be delayed or denied by the Department
(e) When planning medical treatment, the employee or covered contract worker must consult with the employer or covered business entity in advance of an application to the Department and make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's or covered business entity's operations, subject to the approval of the health care provider.
(f) If, for reasons beyond the covered individual's reasonable control, the individual cannot provide the Department with at least 30 calendar days notice then the individual shall provide notice as soon as is practicable. The Department shall notify a covered individual's employer or covered business entity, if applicable, not more than five business days after an application for benefits under M.G.L. c. 175M is filed, and shall facilitate the disclosure and exchange of relevant information or records regarding the application for benefits. The Department's notice to an employer or covered business entity shall contain:
1. the covered individual's full name and other identifying information;
2. the type of leave at issue;
3. the expected duration of the leave;
4. whether the request is for continuous or intermittent leave;
5. a certification as outlined in 458 CMR 2.08(5), supporting the need for a leave under M.G.L. c. 175M; and
6. any other information relevant to the application for benefits.
(3)
Consent. A covered individual filing an application for benefits must provide the Department with consent to share information regarding the application for benefits and other information necessary for the Department to process the individual's application for benefits, including consent to share information with the individual's employer or covered business entity (if any) and health care provider. Consent shall be acknowledged by the individual in a form provided by the Department. An application for benefits will not be processed, unless a consent is provided by the covered individual.
(4)
Application for Benefits. When filed, an application for benefits will not be processed by the Department, unless the application for benefits includes all information necessary for the Department's review and processing including, but not limited to:
(a) Identifying information, such as Social Security Number or Individual Taxpayer Identification Number;
(b) The nature of the leave, whether family leave or medical leave;
(c) The starting date and expected duration of the leave;
(d) Whether the leave will be continuous or intermittent;
(e) For employees and covered contract workers:
1. Employer or covered business entity name and identification number (which is included on the notice the employer or covered business entity is required to provide to employees and covered contract workers);
2. Evidence that notice was provided to the employer or covered business entity in advance of the application for benefits, including the date notice was provided to the employer or covered business entity; and
3. Any denied, granted, or pending requests for leave for a qualifying reason from the employer during the last 12 months;
(f) An attestation regarding the family relationship in the form specified by the Department if the leave involves an application for benefits for family leave benefits or an application for benefits relating to active duty military service by a family member;
(g) Completed certification as required in 458 CMR 2.08(5);
Additional specific information requested by the Department where reasonably necessary to review and process an individual's application for benefits including, but not limited to, whether the covered individual will be receiving any other wage replacement as set forth in 458 CMR 2.12(6);
(h) If an application for benefits is filed with the Department or is filed but does not include all required information and more than 90 calendar days have passed since the start of the individual's period of leave, the covered individual may receive reduced benefits in the discretion of the Director.
(5)
Certifications. All applications for benefits shall be supported by a certification evidencing that the leave is for a qualifying reason.
(a)
Medical Leave Benefits. The certification must be from a health care provider and must include:
1. a statement that the covered individual has a serious health condition;
2. the date on which the serious health condition commenced;
3. the probable duration of the serious health condition;
4. other information required by the Department, including a certification by the health care provider that the individual is incapacitated from work due to the serious health condition; and
5. where the application for benefits is for leave on an intermittent or reduced leave schedule, information regarding the need for intermittent leave, including a statement that such leave or schedule is medically necessary.
In the event that a serious health condition of the covered individual prevents the covered individual from providing the required certification within 90 calendar days of the start of the leave, the Department will allow for a good cause exemption to permit delayed benefits under 458 CMR 2.08(4)(i).
(b)
Family Leave Benefits to Care for a Family Member with a Serious Health Condition. The certification must contain a statement in a form prescribed by the Department confirming the relationship between the covered individual and the family member and must include the following from the covered individual or the family member's health care provider:
1. the name and address of the family member and the relationship to the covered individual;
2. a statement that the family member has a serious health condition;
3. the date on which the family member's serious health condition commenced;
4. the probable duration of the family member's serious health condition;
5. a statement that the covered individual is needed to care for the family member;
6. an estimate regarding the frequency and the anticipated duration of time that the covered individual is needed to care for the family member; and
7. information from the covered individual that proves to the satisfaction of the Department the identity of the family member.
(c)
Family Leave Benefits for the Birth of a Child. The certification must include:
1. the child's birth certificate;
2. a statement from the child's health care provider stating the child's birth date; or
3. a statement from the health care provider of the person who gave birth stating the child's birth date.
The leave period for which benefits are requested may only include dates within 12 months of the child's birth date. In the case of multiple births, no more than 12 weeks of leave benefits total are available in a benefit year for this purpose.
(d)
Family Leave for the Placement of Child for Adoption or Foster Care. The certificate must be from the child's health care provider or from an adoption or foster care agency involved in the placement or the Massachusetts Department of Children and Families and must confirm both the placement and the date of the placement. The leave period for which benefits are requested must be for dates within 12 months of the placement date.
To the extent that the status of a covered individual as an adoptive or foster parent changes while an application for benefits is pending or while the covered individual is receiving benefits, the covered individual shall provide written notice to the Department within five business days of such change in status. The Massachusetts Department of Children and Families may confirm in writing the status of the covered individual as an adoptive or foster parent while an application for benefits is pending or while a covered individual is receiving benefits.
(e) Family Leave Benefits for a qualifying exigency arising out of the fact that a family member is on active military duty or has been notified of an impending call or order to active duty in the Armed Forces. The certification must include:
1. a copy of the family member's active duty orders; or
2. a letter of Impending Activation from the family member's Commanding Officer; or
3. other documentation reasonably acceptable to the Department in circumstances where, for good cause shown, the applicant is unable to produce the documentation specified in 458 CMR 2.08(5)(e)1. or 2.;
4. a statement of the family relationship between the service member and the family member requesting benefits in a form prescribed by the Department;
5. information from the covered individual that proves to the satisfaction of the Department the identity of the family member;
6. the name and address of the family member being cared for;
7. the dates or period of time for which leave is requested; and
8. the underlying reason for the exigency leave.
(f)
Family Leave Benefits to Care for a Family Member Who Is a Covered Service Member. The certification from the covered individual or the service member's health care provider must include:
1. the date on which the covered service member's serious health condition commenced;
2. the probable duration of the condition;
3. a statement that the covered individual is needed to care for the family member;
4. an estimate of the amount of time the covered individual will be needed to care for the family member;
5. an attestation by the service member's health care provider and the covered individual that the health condition is connected to the service member's military service;
6. a statement of the family relationship between the service member and the family member requesting benefits in a form prescribed by the Department; and
7. information from the covered individual that proves to the satisfaction of the Department the identity of the family member;
8. The name and address of the family member being cared for; and
9. other information or documentation that may be required by the Department.
(g) Where it determines that a certification lacks required information, or is not accurate or authentic, or is otherwise insufficient, the Department may contact the health care provider and require that it verify, supplement, or otherwise amend the information in the certification.
(6)
Information from Employer or Covered Business Entity. Following notice given under 458 CMR 2.08(2), the Department will request from the employer or covered business entity information supporting whether the employee's or covered contract worker's request for medical or family leave has been approved, denied or is pending upon the receipt of additional information.
Upon request, an employer or covered business entity shall within ten business days provide to the Department information or records relevant to an application for benefits made by a covered individual, including with respect to the covered individual the following:
(a) Wage and/or earnings information for the past 12 months;
(b) A description of the employee's or covered contract worker's position;
(c) Whether the employee or covered contract worker currently works a full- or part-time schedule;
(d) Weekly hours worked;
(e) Prior requests/approvals for a qualifying reason;
(f) Amount of paid leave already taken for a qualifying reason during the current benefit year;
(g) A description of the employer's or covered business entity's own paid leave policies and whether the employee or covered contract worker has received paid or unpaid leave during the last 12 months under any plan or practice of the employer or covered business entity, and whether the employee or covered contract worker will receive any paid leave benefits from the employer or covered business entity during the requested leave period at issue;
(h) Whether the covered individual has applied for concurrent FMLA or other leave and whether the employer or covered business entity has approved the application;
(i) Whether the covered individual will be receiving any other wage replacement benefits as set forth in 458 CMR 2.12(6); and
(j) Any other relevant information or records related to the claim, including any evidence of a potentially fraudulent claim.
(7)
Processing of Applications. The time standards for the Department's processing of a complete application for paid leave benefits are as follows:
(a) Within 14 calendar days of receiving an application under M.G.L. c. 175M, the Department shall notify applicants for benefits of its approval or denial of applications for paid leave benefits, or of the need for additional information from the covered individual or the employer or covered business entity. A request from the Department for additional information necessary to process an application for paid leave benefits shall satisfy the Department's obligation to timely notify applicants under M.G.L. c. 175M, § 8(b), if such request is made within 14 calendar days of its receipt of the complete application for benefits.
(b) The Department shall commence payment of leave benefits not less than 14 calendar days after approving a complete application, unless that determination occurs more than 14 calendar days before the onset of eligibility, in which case the Department shall commence payment of leave benefits as soon as eligibility begins.
(8)
Leave Allotments.
(a) Beginning January 1, 2021, covered individuals shall be eligible for up to 26 total weeks, in the aggregate, of family and medical leave under M.G.L. c. 175M in a benefit year.
(b) Beginning January 1, 2021, covered individuals shall be eligible for up to 12 weeks of family leave in a benefit year:
1. for the birth, adoption, or foster care placement of a child; or
2. due to a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces.
(c) Beginning January 1, 2021, covered individuals shall be eligible for up to 26 weeks of family leave in a benefit year in order to care for a family member who is a covered servicemember.
(d) Beginning January 1, 2021, covered individuals shall be eligible for up to 20 weeks of medical leave in a benefit year if they have a serious health condition that incapacitates them from work.
(e) Beginning July 1, 2021, covered individuals shall be eligible for up to 12 weeks of family leave to care for a family member with a serious health condition.
(f) Leave allotments are based on the number or hours or days a covered individual works. When a covered individual works a part-time schedule or variable hours, the amount of leave that a covered individual uses is determined on a pro rata or proportional basis. If a covered individual's schedule varies from week to week to such an extent that an employer or covered business entity is unable to determine with certainty how many hours the covered individual would otherwise have worked (but for taking leave as authorized by M.G.L. c. 175M), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period will be used for calculating the leave entitlement.
(9) Consistent with the notice requirements set forth in 458 CMR 2.08(2)(b), the Department may allow an employer, covered business entity, or its designee to submit an application for benefits on behalf of a covered individual. In order to do so, employers, covered business entities, or leave administrators must be approved by the Department and agree to adhere to all of the requirements prescribed in 458 CMR 2.08, including the timelines set forth in 458 CMR 2.08(7).
(10)
Leave for Substance Use Disorder.
(a) A Substance Use Disorder may be a serious health condition. Family or medical leave may only be taken for treatment for substance use disorder by a health care provider, by a provider of health care services on referral by a health care provider or by a program licensed or approved by the Massachusetts Department of Public Health. An absence because of the employee's use of the substance, rather than for treatment, does not qualify for leave.
(b) Treatment for substance use disorder does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take leave for treatment. However, if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance use, pursuant to that policy, the employee may be terminated whether or not they are presently taking leave. An employee may also take leave to care for a covered family member who is receiving treatment for substance use disorder. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance use disorder because the employee has exercised his or her right to take leave.
