On November 1, 2023, the Massachusetts Department of Family and Medical Leave (DFML) announced that employees who apply for paid family and medical leave (PFML) benefits directly through the state program will be able to supplement (or “top off”) their PFML benefits with their accrued paid leave, such as vacation pay, sick pay, or other paid leave (PTO) provided by their employer. We are issuing this advisory because there has been an important clarification to this requirement and we are advising our clients to take advantage of this clarification by updating their policies to avoid having to top off the benefits.
“Top off” refers to the practice of using employer-provided paid leave to supplement or add to the benefits received under the PFML program. PFML benefits are designed to provide partial income replacement for employees during approved medical and family leave events. However, because these benefits only partially replace an employee’s income, some employees may seek to use their accrued paid leave from their employer to top off the PFML benefit and receive 100% of their usual pay.
In its most recent guidance, DFML offered greater clarity with, “FAQs for Employees about Topping Off PFML Benefits.” This update is significant because it specifies that the use and accrual of employer-provided paid leave to top off PFML benefits is subject to the terms and conditions of the employer’s policy. Thus, the employer’s policy regarding the use of paid leave to supplement benefits determines how and when employees can top off their leave compensation.
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