United States: Massachusetts DFML Releases Private Plan Exemption Application And Guidance; Applications Due By June 30, 2019

Seyfarth Synopsis: As previously announced, yesterday, the Massachusetts Department of Family and Medical Leave (DFML) made available the online application for private plan exemptions under the Paid Family and Medical Leave ("PFML") Law. The DFML also released new information on how to calculate the required surety bond for self-insured private plans, as well as further details regarding the application process. Employers may start submitting exemption applications now. In order to avoid commencing the payroll tax deductions on July 1, 2019 and remitting contributions for the July-September quarter, employers must submit the exemption application by June 30, 2019. The Commonwealth also published related FAQs and materials that address a number of open questions, including a private plan's coverage of separated employees, and the effect on contributions for employers applying for a private plan exemption in the future.

Eligible Private Plans Must Already Provide The Paid Leave Benefits Prior To Application

Massachusetts employers that "already provide" all employees paid leave benefits that are greater than or equal to those provided under the PFML Law, at a cost to employees that is less than or equal to the amount required for employee contributions under the state plan, may be eligible for an exemption from collecting, remitting, and paying family and/or medical leave contributions to the Commonwealth's trust fund.

As previously reported, however, the Department has limited applications to those employers that "already provide" sufficiently generous policies or plans. The Department has since clarified that this language reflects its intention to limit the exemption to those actually providing the required paid leave benefits prior to an application. In other words, while the public program will not provide covered workers the paid leave benefits until 2021, those seeking a private plan exemption prior to the July 1, 2019 contributions commencement must provide employees the actual paid leave benefits by July 1, 2019.

Exemption Application Process

Employers seeking approval of private plans must submit an exemption application annually through MassTaxConnect. The DFML will accept applications on a rolling basis, beginning April 29, 2019, and if approved, the approval will be valid for one year. However, to avoid the contribution requirements for the July-September quarter, applications must be received by June 30, 2019.

The DFML has posted a document containing all questions on the exemption application here. The questions on the application are aimed at determining whether the employer's plan satisfies all of the requirements of the PFML Law. Employers should be prepared to provide their workforce count and details of their plan.

Of particular note, the document containing the application's questionnaire reveals the answer to a commonly asked question regarding a private plan's coverage of former employees who apply for leave benefits during the 26 weeks following separation from employment. According to this document, a private plan must cover unemployed former employees who apply for leave benefits for up to 26 weeks after separation, or until they obtain other employment, whichever is sooner.

According to the DFML, once an employer submits an application, it will receive a determination within one to two business days. If the exemption is approved, employers will be required to upload a copy of the plan upon which the exemption is based. Employers with self-insured plans will also need to provide proof of bond coverage. If the exemption is denied, the employer may request a follow-up review.

For more information, the Commonwealth released new FAQs regarding the registration and exemption application process, which can be viewed here, including a video on how to apply for a paid family and medical leave exemption.

Bond Requirements For Self-Insured Plans

The DFML announced how it will calculate the required surety bond value for self-insured plans.  For every 25 covered employees, the DFML will require a bond value of:

  • $19,000 for qualifying family leave plans,
  • $51,000 for qualifying medical leave plans, and
  • $70,000 for qualifying plans for both family and medical leave.

For example, an employer applying for an exemption from family leave with 12 employees will require a bond value of $19,000. An employer applying for an exemption from medical leave with 12 employees will need a bond value of $51,000. On the other hand, an employer applying for an exemption from medical leave with 85 employees will need a bond value of $153,000; and an employer applying for an exemption from both family and medical leave with 85 employees will require a bond value of $210,000.

New FAQs On The Registration And Application Process

The new FAQs clarify that if a company adopts a private plan sometime in the future and that plan is approved for an exemption, the company can stop contributing to the public trust fund on the first day of the quarter following the quarter in which the exemption was approved.

The FAQs also provide guidance on how employers can calculate their workforce count (as required in the application), which is based on the employer's average number of employees during each pay period for a twelve-month period. The FAQs further explain how to calculate whether 50% or more of a company's Massachusetts workforce is comprised of 1099-MISC independent contractors, in which case the total workforce count must include the 1099 contractors. Examples of workforce count calculations are included as well.

The FAQs address other application-related questions, including how a start-up company can determine its workforce count.

In the FAQs, the Commonwealth also clarifies that for PFML contribution purposes in 2019, the $132,900 income limit will be calculated using wages/payments made to employees/covered contract workers from July 1, 2019 through December 31, 2019, rather than year-to-date wages.   

Additional Exemption Requirements

As a reminder, to be eligible for the exemption, in addition to providing all employees paid leave benefits that are greater than or equal to those provided under the PFML Law, at a cost to employees that is less than or equal to the amount required for employee contributions under the state plan, a qualifying family and/or medical leave plan must provide: job protection during such leave; continued employer contributions to employment-related health insurance benefits, if any, at the level and under the conditions provided if working continuously; intermittent leave with the weekly benefit amount being prorated; and a statement in the plan that all presumptions shall be made in favor of the availability of leave and the payment of leave benefits.

Because mandatory written PFML notices must be distributed to employees and contractors by May 31, 2019, and because the written notice must inform employees of the proportion of the contributions being deducted from employees as of July 1, 2019 and whether the employer has an approved private plan, employers need to decide these matters prior to May 31, 2019. For our prior reports on the notice obligation, the DFML's template notices, and other details of the PFML Law and the proposed regulations, you may refer  here here, here, and here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions