Family and medical leave

458 CMR: 458 CMR: DEPARTMENT DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND LEAVE MEDICAL LEAVE

458 CMR 458 CMR 2.00: 2.00: FAMILY AND FAMILY AND MEDICAL LEAVE MEDICAL LEAVE

Section Section

2.01: 2.01: Purpose, Scope, Purpose, Scope, and and Other Other General General Provisions Provisions 2.02: 2.02: Definitions Definitions 2.03: 2.03: Covered Business Covered Business Entities Entities and and Covered Covered Contract Contract Workers Workers 2.04: 2.04: Registration and Registration and Filing Filing 2.05: 2.05: Contributions Contributions 2.06: 2.06: Optional Coverage Optional Coverage for for Self-employed Self-employed Individuals Individuals or or Employers Employers Not Subject to Not Subject to M.G.L. M.G.L. c. c. 175M 175M 2.07: 2.07: Application for Application for Exemption Exemption Due Due to to Approved Approved Private Private Plan Plan 2.08: 2.08: Application for Application for Benefits Benefits Filed Filed with with the the Department Department 2.09: 2.09: Determinations by Determinations the Department by the Department 2.10: 2.10: Application for Application for Benefits Benefits Verification, Verification, Amendment, Amendment, or or Extension Extension of of Leave Leave Period Period and and Paid Paid Leave Benefits Leave Benefits 2.11: 2.11: Fitness for Fitness for Duty Duty at at Close Close ofof Medical Medical Leave Leave Period Period 2.12: 2.12: Weekly Benefit Weekly Benefit Amount Amount fromfrom the the Department Department 2.13: 2.13: Intermittent Leave Intermittent and Reduced Leave and Reduced Leave Leave Schedules Schedules 2.14: 2.14: Application for Application for Benefits Benefits Denials Denials and and Appeals Appeals 2.15: 2.15: Attestations and Attestations and False False Statements Statements 2.16: 2.16: Employee Job Employee Job Protection, Prohibition on Protection, Prohibition on Retaliation, Maintenance of Retaliation, Maintenance of Health Health Insurance Insurance 2.17: 2.17: Severability Severability

2.01: Purpose, Scope, 2.01: Purpose, Scope, and and Other Other General General Provisions Provisions

(1) Purpose. (1) Purpose. 458 458 CMR CMR 2.00 2.00 clarifies clarifies procedures, procedures, practices, and policies practices, and policies in in the the administration administration and enforcement and enforcement of of the the Family Family and and Medical Medical Leave Leave Law, M.G.L. c. Law, M.G.L. c. 175M. 175M.

(2) Scope. (2) Scope. 458 458 CMR CMR 2.002.00 applies applies to to Massachusetts Massachusetts employers employers and and covered covered business business entities entities and to and to Massachusetts covered individuals, Massachusetts covered individuals, including including employees employees and and self-employed self-employed individuals individuals who elect who elect coverage, coverage, who who areare eligible eligible forfor family family andand medical medical leave leave benefits benefits pursuant pursuant to to the the provisions provisions ofof M.G.L. M.G.L. c. c. 175M. 175M. Under 458 Under 458 CMRCMR 2.00,2.00, an an employer employer or or covered covered business entity shall business entity shall be considered aa be considered Massachusetts employer Massachusetts employer or or covered covered business entity with business entity with respect respect to to services services performed performed by by aa covered individual covered individual for for the the employer employer or or covered covered business entity, and business entity, and aa covered covered individual individual shall shall be considered aa Massachusetts be considered Massachusetts coveredcovered individual individual with with respect respect toto all all services services provided provided within, within, or both or within and both within and without without Massachusetts Massachusetts for for an an employer employer or or covered covered business business entity, entity, if: if: (a) the (a) the service service performed performed is is localized localized in in Massachusetts. Massachusetts. Service Service shall shall be deemed to be deemed to be be localized within localized within Massachusetts Massachusetts if if the the service service is is performed performed entirely entirely within within Massachusetts, Massachusetts, or or the service the service isis performed performed both within and both within and without without Massachusetts, Massachusetts, but the service but the service performed performed without Massachusetts without Massachusetts is is incidental incidental to to the the individual's individual's service service within within Massachusetts; Massachusetts; for for example, the example, the service service isis temporary temporary or or transitory transitory inin nature, nature, or or consists consists of of isolated isolated transactions. transactions. (b) the (b) the service service isis not not localized localized in in any any state, state, but but some some part part of of the the service service isis performed performed in in Massachusetts; Massachusetts; and and 1. the 1. the individual's individual's basebase of of operations operations is is in in Massachusetts Massachusetts or, or, if if there there is is no no base base ofof operations, then operations, then the the place from which place from which such such service service is is directed directed or or controlled, controlled, is is within within Massachusetts; Massachusetts; or or 2. the 2. the individual's individual's basebase of of operations operations or or place from which place from which suchsuch service service is is directed directed oror controlled is controlled is not not inin any any state state inin which which some some part part of of the the service service is is performed, performed, but the but the individual's residence individual's residence is is in in Massachusetts. Massachusetts.

(3) Interaction (3) Interaction with with State State and and Federal Federal Leave Leave Laws. Laws. Leave Leave taken taken under under M.G.L. M.G.L. c.c. 175M 175M shall shall run concurrently run concurrently with with leave leave taken taken under under other other applicable applicable state state and and federal federal leave leave laws, laws, including including the Massachusetts the Massachusetts Parental Parental Leave Leave Act Act (M.G.L. (M.G.L. c. 149, §§ 105D) c. 149, 105D) andand the the federal federal Family Family and and Medical Leave Medical Leave Act Act of of 1993 1993 (29 (29 U.S.C. U.S.C. 2601), when the 2601), when the leave leave is is for for aa qualified qualified reason reason under under those acts. those acts.

Use of (4) Use (4) of Electronic Electronic Communications. Communications. Any written communication Any written communication required required or or permitted permitted under M.G.L. under M.G.L. c.c. 175M 175M oror under under 458 458 CMR CMR 2.00 2.00 shall shall be made and be made and transmitted transmitted in in the the manner manner and and form prescribed form prescribed by the director, by the director, which which may may include include by means of by means of electronic electronic communication. communication. TheThe director shall director shall establish establish procedures procedures allowing allowing the the use use of of the the United United States States Postal Postal Service Service (regular (regular mail) for mail) for persons lacking reasonable persons lacking reasonable access access to, to, or or the the ability ability to to use, use, electronic electronic communication. communication.

1/06/2023) (Mass. Register #1486, 1/06/2023)

458 CMR: 458 CMR: DEPARTMENT DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: Definitions 2.02: Definitions

For the For the purposes of458 purposes of 458 CMR CMR 2.00, the following 2.00, the following words words shall shall have have the the following following meanings, meanings, unless the unless the context context clearly clearly requires requires otherwise. otherwise. Terms Terms defined defined under under the the federal federal Family Family Medical Medical Leave Act Leave Act of of 1993, and its 1993, and its implementing implementing regulations regulations (28 (28 CFR CFR §§ 825) 825) shall shall be be treated treated as as persuasive, supplementary authority persuasive, supplementary authority when when those those definitions definitions are are not not facially facially inconsistent inconsistent with with the the terms adopted terms adopted in in M.G.L. M.G.L. c.c. 175M, 175M, and and 458 458 CMR CMR 2.00. 2.00.

Accrued Paid Accrued Paid Leave. Leave. Leave Leave earned earned by or otherwise by or otherwise provided provided to to aa covered covered individual individual pursuant pursuant to aa benefit to benefit plan plan or or policy offered by policy offered an employer by an employer oror covered covered business business entity entity including, including, but not but not limited to, limited to, sick sick leave, leave, annual annual leave, leave, vacation vacation leave, leave, personal personal leave, leave, compensatory compensatory leave leave or or paid paid time off. time off. Accrued Accrued paid paid leave leave shall shall not not include: include: disability policy (a) disability (a) or program policy or program ofof an an employer employer oror covered covered business entity; or business entity; or paid family, (b) paid (b) family, or or medical medical leave leave policy of an policy of an employer employer or or covered covered business entity. business entity.

Active Duty. Active Duty. For For the the purposes ofadministering paid purposes of paid leave leave under under M.G.L. M.G.L. c. c. 175M, 175M, and and 458 458 CMR CMR 2.00, Active 2.00, Active Duty Duty means means full-time full-time duty duty in in the the active active military military service service of of the the United United States States and and full-time National full-time Guard duty, National Guard duty, and and deployed to aa foreign deployed to foreign country. country.

Adoption. Legally Adoption. and permanently Legally and assuming the permanently assuming the responsibility raising aa child ofraising responsibility of child as as one's one's own. own. The source The source of ofan an adopted adopted child child (i.e., (i.e., whether whether from from aa licensed licensed placement placement agency agency oror otherwise) otherwise) is is factor in not aa factor not in determining determining eligibility eligibility for for leave. leave.

Application for Application for Benefits. Benefits. A A request request for for family family or or medical medical leave leave benefits benefits pursuant to 458 pursuant to 458 CMR CMR 2.08. 2.08.

Average Weekly Average Weekly Wage.Wage. Has Has the the same same meaning meaning as as provided in M.G.L. provided in M.G.L. c. 151A, §§ l(w); c. 151A, l(w); provided, however, that provided, however, that Average Average Weekly Weekly Wage Wage shall shall be calculated using be calculated using earnings earnings from from the the base base period; and provided period; and provided further, further, that that in in the the case of aa self-employed case of self-employed individual, individual, Average Average Weekly Weekly Wage shall Wage mean 11 //26 shall mean ofthe 26 of the total total earnings earnings of ofthe the self-employed self-employed individual individual from from the the two two highest highest quarters of quarters of the the 12 12 months months preceding preceding such such individual's individual's application application for for benefits benefits under under M.G.L. c. M.G.L. c. 175M. 175M. IfIf an an individual individual has has multiple multiple employers, employers, the the Average Average Weekly Wage will Weekly Wage will be be calculated for calculated for each each employer employer or or covered covered business entity separately. business entity separately.

Average Working Average Working Week. Week. The The average average number number ofof hours hours worked worked from from the the two two highest highest quarters quarters of the of the 12 12 months months preceding preceding such such individual's individual's application application for for benefits under M.G.L. benefits under M.G.L. c. c. 175M. 175M.

Base Period. Base Period. The The last last four four completed completed calendar calendar quarters quarters within within the the previous five calendar previous five calendar quarters immediately quarters immediately preceding preceding the the date date an an application application for for benefits benefits is is filed filed with with the the Department Department for aa qualified for qualified period period of of paid family or paid family or medical medical leave. leave. A A completed completed calendar calendar quarter quarter is is one one for for which an which an employment employment andand wage wage detail detail report report has has been or should been or should have have been filed, pursuant been filed, to pursuant to 458 CMR 458 CMR 2.04(1) 2.04(1) and and (2). (2).

Benefit Year. Benefit Year. The The period period of of 52 52 consecutive consecutive weeks weeks beginning beginning on on the the Sunday Sunday immediately immediately preceding the preceding the first first day day that that job-protected leave under job-protected leave under M.G.L. M.G.L. c. c. 175M 175M commences commences for for the the covered individual. covered individual.

Calendar Year. Calendar A 12-month Year. A 12-month period starting with period starting January 11 stst and with January and ending ending with with December 31stst.. December 31

Child. A Child. A biological, adopted or biological, adopted or foster foster child, child, aa stepchild stepchild or or legal legal ward, ward, aa child child to to whom whom the the covered individual covered individual stands stands in in loco loco parentis, or aa person parentis, or person to to whom whom the the covered covered individual individual stood stood in in loco parentis loco when the parentis when the person was aa minor person was minor child. child.

Complete Application. Complete Application. AnAn application application for for benefits that contains benefits that contains all all of ofthe the required required information information from the from the covered covered individual individual pursuant pursuant to to 458 458 CMR CMR 2.08(2) 2.08(2) and and all all of of the the information information required required from the from the employer employer pursuant pursuant to to 458 458 CMR CMR 2.08(6). 2.08(6). The The application application for for benefits shall be benefits shall deemed be deemed complete when complete when the the Department Department receives receives the the information information required required under under 458 458 CMR CMR 2.08(6) 2.08(6) oror ten ten business days after business days after the the Department Department requests requests the the information information required required under under 458 458 CMR CMR 2.08(6) 2.08(6) from the from the employer, employer, whichever whichever is is sooner. sooner.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND LEAVE MEDICAL LEAVE

2.02: continued 2.02: continued

Continuing Treatment Continuing Treatment by by aa Health Health Care Care Provider. Provider. Includes Includes any any oneone or or more more of of the the following: following: (a) Incapacity (a) Incapacity and and Treatment. Treatment. A A period period of of incapacity incapacity of of more more than than three three consecutive, consecutive, full full calendar days, calendar days, and and anyany subsequent subsequent treatment treatment or or period period of of incapacity incapacity relating relating to to the the same same condition, that condition, that also also involves: involves: 1. Treatment 1. Treatment two two oror more more times, times, within within 30 30 calendar calendar daysdays of of the the first first day day of of incapacity, incapacity, unless extenuating unless extenuating circumstances circumstances exist, by aa health exist, by health care care provider, provider, by by aa nurse nurse under under direct direct supervision of supervision of aa health health carecare provider, provider, or or byby aa provider provider of of health health care care services services (e.g., (e.g., physical therapist) under physical therapist) under orders orders of,of, oror on on referral by, aa health referral by, health carecare provider; provider; or or 2. Treatment 2. Treatment by by aa health health carecare provider provider on on atat least least one one occasion, occasion, whichwhich results results in in aa regimen of regimen of continuing continuing treatment treatment under under the the supervision supervision of of the the health health carecare provider. provider. Treatment includes Treatment includes examination examination to to determine determine if if there there is is aa serious serious health health condition. condition. Treatment does Treatment does notnot include include routine routine physical physical examinations, examinations, eye eye examinations, examinations, or or dental examinations. dental examinations. A A regimen regimen of of continuing continuing treatment includes aa course treatment includes course of of prescription prescription medication or medication or therapy requiring specialized therapy requiring specialized equipment equipment to to resolve resolve or or alleviate alleviate the the health health condition. condition. 3. The 3. The requirement requirement for for treatment treatment by by aa health health carecare provider provider meansmeans an an in-person in-person visit visit or or telehealth visit telehealth visit toto aa health health carecare provider. provider. The The first first (or (or only) only) in-person in-person or or telehealth telehealth visitvisit must take must take place place within within seven seven calendar calendar days days of of the the first first day day of of incapacity incapacity 4. Whether 4. Whether additional additional treatment treatment visitsvisits oror aa regimen regimen of of continuing continuing treatment treatment is is necessary necessary within the within the 30-calendar 30-calendar day day period period shallshall bebe determined determined by the health by the health care care provider. provider. 5. The 5. The termterm extenuating extenuating circumstances circumstances means means circumstances circumstances beyond beyond the the covered covered individual's control individual's control that that prevent prevent the the follow-up follow-up visit visit from from occurring occurring as as planned planned by the by the health care health care provider. provider. Whether Whether aa given given setset ofof circumstances circumstances are are extenuating extenuating dependsdepends on on the facts. the facts. For For example, example, extenuating extenuating circumstances circumstances exist exist if if aa health health carecare provider provider determines that determines that aa second second in-person in-person visitvisit isis needed needed within within the the 30-calendar 30-calendar day day period, period, but but the health the health care care provider provider does does not not have have any any available available appointments appointments during during that that time time period. period. (b) Pregnancy (b) Pregnancy or or Prenatal Prenatal Care. Care. Any period of Any period of incapacity incapacity due due to to pregnancy, pregnancy, or or for for prenatal prenatal care. care. (c) Chronic (c) Chronic Conditions. Conditions. Any period of Any period of incapacity incapacity or or treatment treatment for for such such incapacity incapacity due due toto aa chronic chronic serious serious health health condition. condition. A chronic serious A chronic serious health health condition condition is is one one which: which: 1. Requires 1. Requires periodic visits (defined periodic visits (defined as as at at least least twice twice per per calendar calendar year) year) forfor treatment treatment by by aa health health care care provider, provider, or or byby aa nurse nurse under under direct direct supervision supervision of of aa health health carecare provider; provider; 2. Continues 2. Continues over over anan extended extended period period of of time time (including (including recurring recurring episodes episodes of of aa single single underlying condition); underlying condition); and and 3. May 3. May causecause episodic episodic rather rather thanthan aa continuing continuing period period of of incapacity incapacity (e.g.,(e.g., asthma, asthma, diabetes, epilepsy, diabetes, epilepsy, etc.). etc.). (d) Permanent (d) Permanent or or Long-term Long-term Conditions. Conditions. A A period period of of incapacity incapacity which which is is permanent permanent or or long-term due long-term due to to aa condition condition for for which which treatment treatment may may not not be be effective. effective. The The covered covered individual or individual or family family member member must must be under the be under the continuing continuing supervision supervision of, of, but need not but need not bebe receiving active receiving active treatment treatment by, by, aa health health carecare provider. provider. Examples Examples include Alzheimer's, aa severe include Alzheimer's, severe stroke, or stroke, or the the terminal terminal stagesstages of of aa disease. disease. (e) Conditions (e) Conditions Requiring Requiring Multiple Multiple Treatments. Treatments. Any period of Any period of absence absence to to receive receive multiple multiple treatments (including treatments (including any any period period of of recovery therefrom) by recovery therefrom) by aa health health care care provider provider or by aa or by provider of provider of health health carecare services services under under orders orders of,of, or or on on referral referral by, by, aa health health care care provider, provider, for: for: 1. Restorative 1. Restorative surgery surgery after after anan accident accident or or other other injury; injury; or or 2. A 2. A condition condition that that would would likelylikely result result in in aa period period of of incapacity incapacity of of more more thanthan three three consecutive, full consecutive, full calendar calendar days days inin the the absence absence of of medical medical intervention intervention or or treatment, treatment, such such as cancer as cancer (chemotherapy, (chemotherapy, radiation, radiation, etc.), etc.), severe severe arthritis arthritis (physical (physical therapy), therapy), or or kidney kidney disease (dialysis). disease (dialysis). Absences attributable f) Absences attributable to to incapacity incapacity under under 458 .02: Continuing Treatment 2.02: Continuing Treatment by by aa Health Care Health Care Provider(b) Provider(b) or or (c) (c) qualify qualify for for leave leave eveneven though though the the covered covered individual individual or or the the covered family covered family member member does does not not receive receive treatment treatment from from aa health health carecare provider provider duringduring the the absence, and absence, and even even if if the the absence absence does does not not last last more more than than three three consecutive, consecutive, full full calendar calendar days. days. (g) Cosmetic (g) Cosmetic treatments treatments are are not not serious serious health health conditions, conditions, unless unless inpatient inpatient hospital hospital care care isis required or required or unless unless complications complications develop. develop.

458 CMR: 458 CMR: DEPARTMENT DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

Contributions. The Contributions. The payments made by payments made employer, aa covered an employer, by an covered business business entity, or aa covered entity, or covered individual to individual to the the Family Familyand and Employment Employment Security Security Trust Trust Fund, Fund,as as required required by M.G.L. c. by M.G.L. c. 175M. 175M.

Covered Business Covered Entity. A Business Entity. A business business oror trade trade that that contracts contracts with with self-employed self-employed individuals individuals for for services and services and is is required required to to report report the the payment payment forfor services services to to such such individuals individuals on on IRS IRS Form Form 1099-MISC for 1099-MISC for more more than than 50% 50% of ofits its workforce. workforce.

Covered Contract Covered Worker. A Contract Worker. self-employed individual: A self-employed individual: (a) for (a) for whom whom an an employer employer or or covered covered business entity is business entity is required required to to report report payment payment for for services on services on IRS IRS Form Form1099-MISC; 1099-MISC; for whom (b) for (b) whom an an employer employer oror covered covered business business entity entity is is required required to to remit remit contributions contributions toto the Family the Family and and Employment Employment Security Security Trust Trust Fund Fund pursuant pursuant toto the the requirements requirements of of M.G.L. c. M.G.L. c. 175M, 175M, §§ 6; 6; (c) who (c) who performs services as performs services as an an individual individual in in Massachusetts; Massachusetts; who resides d) who resides in in Massachusetts; Massachusetts; and and (e) who (e) who isis not not classified classified as as an an independent independent contractor contractor pursuant to M.G.L. pursuant to M.G.L. c.c. 151A, 151A, §§ 2. 2.

Covered Individual, Covered Individual, either: either: (a) an (a) an employee employee who who meets meets thethe financial financial eligibility eligibility requirements requirements of of M.G.L. M.G.L. c. c. 151A, 151A, §§ 24(a); 24(a); provided, however, that provided, however, that all all such such employment employment shall shall have have been with an been with an employer employer in in the Commonwealth; the Commonwealth; (b) aa self-employed (b) self-employed individual: individual: 1. who 1. who hashas elected elected coverage coverage underunder M.G.L. M.G.L. c. c. 175M, 175M, §§ (2)(j); (2)(i); 2. whose 2. whose reported reported earnings earnings to to the the Massachusetts Massachusetts Department Department of ofRevenue Revenue from from self- self­ employment meet employment meet the the financial financial eligibility eligibility requirements requirements of ofM.G.L. c. c. 151A, 15lA, §§ 24(a) 24(a) as as if if the individual the individual were were anan employee; employee; and and 3. who 3. who hashas made made contributions contributions as as required required by M.G.L. c. by M.G.L. 175M, §§ 6, c. 175M, 6, for for at at least least two two ofof the previous the four calendar previous four calendar quarters; quarters; (c) aa covered (c) covered contract contract worker: worker: 1. for 1. for whom whom at at least least one one employer employer or or covered covered business entity is business entity is required required to to remit remit contributions to contributions to the the Family Family and and Employment Employment SecuritySecurity Trust Trust Fund Fund pursuant pursuant to to M.G.L. c. M.G.L. c. 175M, 175M, §§ 6; 6; and and 2. whose 2. whose payments payments fromfrom such such employer employer or or covered covered business business entity entity satisf the financial satisfy the financial eligibility requirements eligibility requirements of of M. M.G.L. c. 151A, §§ 24(a) c. 151 24(a) asas if if the the covered covered contract contract worker worker were an were an employee; employee; or or (d) aa former (d) former employee employee who who has: has: 1. met 1. met the the financial financial eligibility eligibility requirements requirements of ofM.G.L. c. c. 151A, 151A, §§ 24(a) 24(a) atat the the time time ofof the former the former employee's employee's separation separation fromfrom employment; employment; provided, however, that provided, however, that all all such such employment shall employment shall have have been been with with anan employer employer in in the the Commonwealth; Commonwealth; and and 2. been 2. been separated separated from from employment employment for for not not more more than than 2626 weeks weeks atat the the start start of of the the former employee's former employee's family family or or medical medical leave; leave; oror (e) aa personal (e) care attendant, personal care attendant, as as defined defined in in M.G.L. M.G.L. c. 118E, §§ 70, c. 118E, 70, whose whose wages wages fromfrom working as working as aa personal personal carecare attendant attendant meetmeet thethe financial financial eligibility eligibility requirements requirements of of M.G.L. c. M.G.L. 151A, §§ 24(a); c. 151A, or 24(a); or (f) aa family (f) family child child care care provider, provider, as as defined defined inin M.G.L. c.15D, §§ 17(a), M.G.L. c.15D, 17(a), whose whose payments payments from from working as working as aa family family child child care care provider meet the provider meet the financial financial eligibility eligibility requirements requirements of of M.G.L. c. M.G.L. c. 151A, 151A, §§ 24(a). 24(a).

Covered Servicemember, Covered Servicemember, either: either: (a) aa member (a) member of ofthe the Armed Armed Forces, Forces,asas defined defined inin M.G.L. M.G.L. c. 4, §§ 7, c. 4, 7, including including aa member member of of the National the Guard or National Guard or Reserves, Reserves, whowho is: is: 1. undergoing 1. undergoing medical medical treatment, treatment, recuperation recuperation or or therapy; therapy; 2. otherwise 2. otherwise inin outpatient outpatient status; status; or or 3. is 3. is otherwise otherwise on on the the temporary temporary disability disability retired retired list list for for aa serious serious injury injury or or illness illness that that was incurred was incurred by the member by the member in in the the line line of ofduty duty onon active active duty duty in in the the Armed Armed Forces, Forces,oror aa serious serious injury injury or or illness illness that that existed existed before the beginning before the beginning of ofthe the member's member's active active duty duty and was and was aggravated aggravated by service in by service in the the line line of ofduty duty on on active active duty duty in in the the Armed Armed Forces; Forces;oror

458 CMR: 458 DEPARTMENT OF CMR: DEPARTMENT OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

(b) aa former (b) former member member of of the the Armed Armed Forces, Forces, including including aa former former member member of of the the National National Guard or Guard or Reserves, Reserves, whowho isis undergoing undergoing medical medical treatment, treatment, recuperation recuperation oror therapy therapy for for aa serious injury serious injury or or illness illness that that was was incurred incurred by the member by the member in in line line of of duty duty on on active active duty duty in in the the Armed Forces, Armed or aa serious Forces,or serious injury injury or or illness illness that that existed existed before before the the beginning ofthe beginning of the member's member's active duty active duty and and was was aggravated aggravated by service in by service in line line of of duty duty on on active active duty duty in in the the Armed Armed Forces Forces and manifested and manifested before before oror after after the the member member was was discharged discharged oror released released from from service. service.

Department. The Department. The Department Department of of Family Familyand and Medical Medical Leave Leave established established in in M.G.L. M.G.L. c. 175M, §§ 8. c. 175M, 8.

Director. The Director. The Director Director of of the the Department Department of of Family Familyand and Medical Medical Leave. Leave.

Domestic Partner. Domestic Partner. A A person person 18 18 years years of of age age or or older older who: who: (a) is (a) is dependent dependent upon upon thethe covered covered individual individual forfor support support as as shown shown by either unilateral by either unilateral dependence or dependence or mutual mutual interdependence interdependence thatthat is is evidenced by aa nexus evidenced by nexus of offactors factors including, including, but but not limited not limited to:to: 1. common 1. common ownership ownership of of real real or or personal personal property; property; 2. common 2. common householding; householding; 3. children 3. children inin common; common; 4. signs 4. signs of of intent intent to to marry; marry; 5. shared 5. shared budgeting; budgeting; andand 6. the 6. the length length of of the the personal relationship with personal relationship with the the covered covered individual; individual; or or (b) has (b) has registered registered asas the the domestic domestic partner of the partner of the covered covered individual individual with with any any registry registry of of domestic partnerships domestic partnerships maintained maintained by the employer by the employer ofof either either party, or in party, or in any any state, state, county, county, city, town city, town or or village village in in the the United United States. States.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AMILY AND AND MEDICAL MEDICAL LEAVE LEAVE

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458 CMR: 458 CMR: DEPARTMENT DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

Earnings from Earnings from Self-employment Self-employment or or Income Income from from Self-Employment. Self-Employment. ShallShall have have the the same same meaning as meaning as "net "net earnings earnings from from self-employment", self-employment", as as defined defined in in the the Internal Internal Revenue Revenue Code Code at at 26 U.S.C. 26 U.S.C. §§ 1402(a), 1402(a), in in effect effect for for the the taxable taxable year, year, and and the the implementing implementing regulations regulations at at 26 26 CFR CFR 1.1402(a). §§ 1.1402(a).

Employee. Shall Employee. Shall have have the the same same meaning meaning as as provided provided inin M.G.L. M.G.L. c. 151A, §§ 1(h); c. 151A, l(h); provided, provided, however, that however, that notwithstanding notwithstanding M.G.L. M.G.L. c. 15lA, §§ 1(h); c. 151A, l(h); or or any any other other special special or or general general law law to to the the contrary and contrary and solely solely for for the the purposes purposes ofofM.G.L. c. 175M, §§ 66 and c. 175M, and the the notice notice provisions set forth provisions set forth in M.G.L. in M.G.L. c. 175M, §§ 4(a) c. 175M, 4(a) and and (b), (b), Employee Employee shall shall include: include: (a) aa family (a) family child child care care provider, as defined provider, as defined in in M.G.L. M.G.L. c.c. 15D, 15D, §§ 17(a); 17(a); and and (b) aa personal (b) personal care care attendant, attendant, as as defined defined in in M.G.L. M.G.L. c.c. 118E, 118E, §§ 70. 70.

Employer. Shall Employer. Shall have have the the same same meaning meaning asas provided provided in in M.G.L. M.G.L. c. 151A, §§ (1)(i); c. 151A, (l)(i); provided, provided, however, that however, that (a) an (a) an individual individual employer employer shall shall be determined by be determined the Federal by the Federal Employer Employer Identification Identification Number; Number; (b) the (b) the Department Department of of Early Education and Early Education and Care Care shall shall be deemed the be deemed the employer employer of of family family child care child care providers, providers, asas defined defined in in M.G.L. M.G.L. c. 15D, §§ 17(a), c. 15D, 17(a), solely solely for for the the purposes purposes of of M.G.L. c. M.G.L. 175M, §§ 66 the c. 175M, the notice notice provisions set forth provisions set forth inin M.G.L. M.G.L. c.c. 175M, 175M, §§ 4(a) 4(a) and and (b), (b), and and 8(d); §§ 8(d); (c) any (c) any employer employer not not subject subject to to M.G.L. M.G.L. c.c. 175M 175M may become aa covered may become covered employer employer under under M.G.L. c. M.G.L. c. 175M 175M by notifying the by notifying the Department Department of ofFamily Family and and Medical Medical Leave Leave andand completing completing the procedure the procedure established established by the Department; by the Department; (d) aa municipality, (d) municipality, district, district, political subdivision or political subdivision or its its instrumentalities instrumentalities shall shall not not be subject be subject to M.G.L. to M.G.L. c. c. 175M, 175M, unless unless it it adopts adopts M.G.L. M.G.L. c. c. 175M 175M by majority vote by majority vote of ofits its authorized authorized local local legislative body legislative body oror governing governing body and otherwise body and otherwise as as provided provided by by M.G.L. M.G.L. c. c. 175M, 175M, §§ 10;10; and and (e) the (e) the PCA PCA Quality Quality Home Home Care Care Workforce Workforce Council Council established established inin M.G.L. M.G.L. c. c. 118E, 118E, §§ 71 71 shall be shall the employer be the employer of of personal personal care care attendants, attendants, as as defined defined in in M.G.L. M.G.L. c. c. 118E, 118E, §§ 70(a), 70(a), solely for solely for thethe purposes purposes of of M.G.L. M.G.L. c. 175M, §§ 6, c. 175M, 6, and and consumers, consumers, as as defined defined in in M.G.L. c. M.G.L. c. 118E, 118E, §§ 70, 70, shall shall be considered the be considered the employers employers of ofpersonal personal care care attendants attendants solely solely for the for the purposes purposes of ofthe the notice notice requirements requirements setset forth forth inin M.G.L. M.G.L. c.c. 175M, 175M, §§ 4(a) 4(a) and and (b), (b), and and 8(d); §§ 8(d); (f) Notwithstanding (f) Notwithstanding any any general general oror special special lawlaw to to the the contrary, contrary, for for the the purposes purposes of of M.G.L. c. M.G.L. c. 175M, 175M, §§ 6, 6, the the PCA PCA Quality Quality Home Home Care Care Workforce Workforce Council Council established established in in M.G.L. c. M.G.L. 118E, §§ 71 c. 118E, 71 shall shall be the employer be the employer of of personal personal care care attendants, attendants, as as defined defined inin M.G.L. c. M.G.L. 70, and 118E, §§ 70, c. 118E, and the the Department Department of ofEarly Education Education and and Care Care shall shall be be the the employer employer offamily of family child child care care providers, providers, as as defined defined in in M.G.L. M.G.L. c. c. 15D, 15D, §§ 17(a). 17(a).

Employment. Shall Employment. Shall have have the the same same meaning meaning as as provided provided by M.G.L. c. by M.G.L. 151A, §§ 1(k); c. 151A, l(k); provided, provided, further, that further, that employment employment shall shall not not include include any any service service not not included included in in "employment" "employment" pursuant pursuant to M.G.L. to M.G.L. c.c. 151A, 151A, §§ 6A. 6A.

Employment Benefits. Employment Benefits. All All benefits benefits provided provided oror made made available available to to covered covered individuals individuals by an by an employer or employer or covered covered business business entity, entity, if ifany, any, including, including, but but not not limited limited to, to, group group life life insurance, insurance, health insurance, health insurance, disability disability insurance, insurance, sick sick leave, leave, annual annual or or vacation vacation leave, leave, educational educational benefits benefits and pensions. and pensions.

Extended Illness Extended Illness Leave Leave Bank. Bank. A A voluntary voluntary program program where where covered covered individuals individuals may may donate donate accrued leave accrued leave time time to to fund fund aa bank for the bank for the benefit benefit of ofaa co-worker co-worker experiencing experiencing aa qualifying qualifying reason reason under M.G.L. under M.G.L. c.c. 175M. 175M.

Family Leave. Family Leave. Leave Leave taken taken to to care care for for aa family family member member withwith aa serious serious health health condition, condition, for for aa parent to parent to bond with the bond with the parent's child during parent's child during the the first first 12 12 months months after after the the child's child's birth, adoption, birth, adoption, or foster or foster care care placement, placement, toto care care for family member for aa family member who who isis aa covered covered service service member, member, or or because of because ofaa qualifying qualifying exigency exigency arising arising out out of of the the fact fact that that aa family family member member is is on on active active duty duty or has or has been notified of been notified ofan an impending impending call call or or order order to to active active duty duty in in the the Armed Armed Forces. Forces.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

FamilyLeave Family Leave Benefits. Benefits. Wage Wage replacement replacement paid paid pursuant pursuant to to M.G.L. M.G.L. c. c. 175M, 175M, §§ 33 and and provided provided in accordance in accordance with with M.G.L. M.G.L. c. c. 175M, 175M, §§ 2, 2, to to aa covered covered individual individual while while the the covered covered individual individual is on is on family family leave. leave.

FamilyMember. Family Member. The The spouse, spouse, domestic domestic partner, child, parent partner, child, parent or or parent of aa spouse parent of spouse or or domestic domestic partner of partner of the the covered individual; aa person covered individual; who stood person who stood inin loco loco parentis to the parentis to the covered covered individual individual when the when the covered covered individual individual was was aa minor minor child; child; or or aa grandchild, grandchild, grandparent grandparent or or sibling sibling of of the the covered individual. covered individual.

FinancialEligibility Financial Test. A Eligibility Test. demonstration that, A demonstration over the that, over the 12 12 months months preceding preceding anan individual's individual's application for application for benefits benefits with with the the Department, Department, the the individual individual has has received received total total wages wages asas an an employee or employee or payments payments for for service as aa covered service as covered contract contract worker worker from from Massachusetts Massachusetts employers employers or Massachusetts or Massachusetts covered covered business business entities entities that that in in the the aggregate aggregate equal equal or or exceed exceed 3030 times times the the individual's weekly individual's weekly benefit benefit amount amount asas determined determined under under 45 CMR 22.12, and 458 CMR and that that in in the the aggregate aggregate are not are not less less than than the the dollar dollar amount amount calculated calculated annually annually by the Massachusetts by the Massachusetts Department Department of of Unemployment Assistance Unemployment Assistance pursuant pursuant toto M.G.L. M.G.L. c. c. 151A, 151A, §§ 24(a). 24(a). Wages Wages received received from from multiple multiple employers or employers or covered covered business business entities entities within within the the base base period period can can be be aggregated aggregated to to determine determine financial eligibility financial eligibility for for leave. leave.

Foster Care. Foster Care. 24-hour 24-hour carecare for for children children inin substitution substitution for for and and away away from from their their parents parents or or guardian. Such guardian. Such placement placement is is made made by or with by or with the the agreement agreement of ofMassachusetts Massachusetts or or any any other other state, state, commonwealth, or commonwealth, or territory territory as as aa result result of ofaa voluntary voluntary agreement agreement between between the the parent parent and and guardian guardian that the that the child child be be removed removed fromfrom thethe home, home, oror pursuant to aa judicial pursuant to determination of judicial determination ofthe the necessity necessity for foster for foster care, care, andand involves involves agreement agreement between between Massachusetts Massachusetts or or any any other other state, state, commonwealth, or commonwealth, or territory territory and and foster foster family family that that the the foster foster family family will will care care for for the the child. child. Although foster Although foster care care may may be with relatives be with relatives of of the the child, child, State State action action is is involved involved inin the the removal removal of the of the child child from from parental parental custody. custody.

FormerMember Former Member of of the the Armed Armed Forces. Forces. An An individual individual who was aa member who was member of of the the Armed Armed Forces, Forces, including aa member including member ofof the the National Guard or National Guard or Reserves, Reserves, and and was was discharged discharged or or released released at at any any time during time during the the five-year five-year period period prior prior to to the the first first date date the the covered covered individual individual completes completes an an application for application for benefits benefits to to care care for for the the former former member member ofof the the Armed Armed Forces. Forces.

Grandparent. A Grandparent. A parent parent of of the the covered covered individual's individual's parents. parents.

Good Cause. Good Cause. A demonstration by A demonstration by aa party that aa failure party that failure to to comply comply with with aa requirement requirement of of M.G.L. c. M.G.L. c. 175M, 175M, and and .00 458 CMR 2.00 was was due due to to circumstances circumstances beyond beyond the the party's party's control. control.

Health Care Health Care Provider. Provider. AnAn individual individual licensed licensed by the state, by the state, commonwealth, commonwealth, or or territory territory in in which which the individual the individual practices practices to to practice practice medicine, surgery, dentistry, medicine, surgery, dentistry, chiropractic, chiropractic, podiatry, midwifery podiatry, midwifery or osteopathy, or osteopathy, and and including including the the following: following: (a) Podiatrists, (a) dentists, clinical Podiatrists, dentists, clinical psychologists, optometrists, and psychologists, optometrists, and chiropractors chiropractors (limited (limited to to treatment consisting treatment consisting of of manual manual manipulation manipulation of of the the spine spine to correct aa subluxation to correct subluxation as as demonstrated by demonstrated X-ray to by X-ray to exist) exist) authorized authorized to to practice practice inin by by aa State State and and performing performing within within the scope the scope of oftheir their practice practice as as defined defined under under the the law law ofofthat that state, state, commonwealth, commonwealth, or or territory; territory; (b) Nurse (b) Nurse practitioners, practitioners, nurse-midwives, clinical social nurse-midwives, clinical social workers workers andand physician assistants physician assistants who are who are authorized authorized toto practice under State practice under State law law and and who who areare performing within the performing within the scope scope of of their practice their practice as as defined defined under under the the law law of of that that state, state, commonwealth commonwealth or or territory; territory; (c) Christian (c) Christian Science Science Practitioners Practitioners listed listed with with thethe First First Church Church of of Christ, Christ, Scientist Scientist in in Boston, Massachusetts. Boston, Massachusetts. (d) A (d) health care A health care provider provider listed listed above above who who practices practices inin aa country country other other than than the the United United States, who States, who is is authorized authorized toto practice practice inin accordance accordance with with the the law law of of that that country, country, and and who who is is performing within the performing within the scope scope of of the the person's person's practice practice asas defined defined under under such such law. law.

Incapacity. An Incapacity. An inability inability to to perform perform the the functions functions of of one's one's position, or where position, or where the the covered covered is aa former individual is individual former employee, employee, to to perform perform the the functions functions of of one's one's most most recent recent position or other position or other suitable employment suitable employment as as that that term term is is defined defined under under M.G.L. M.G.L. c. 151A, §§ 25(c), c. 151A, due to 25(c), due to the the serious serious health condition, health condition, treatment treatment therefor, or recovery therefor, or recovery therefrom. therefrom.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

Inpatient Care. Inpatient Care. An An overnight overnight stay in aa hospital, stay in hospice, or hospital, hospice, or residential residential medical medical care care facility, facility, including any including any period period of of incapacity, incapacity, or or any any subsequent subsequent treatment treatment in in connection connection with with such such inpatient inpatient care. care.

Intermittent Leave. Intermittent Leave. Leave Leave taken taken in in separate separate periods periods ofof time time due to aa single due to single qualifying qualifying reason, reason, rather than rather than for for one one continuous continuous period period of of time. time. Examples Examples of of intermittent intermittent leave leave include include leave leave taken taken on an on an occasional occasional basis for medical basis for medical appointments appointments or or leave leave taken taken several several days days at at aa time time spread spread over over aa period period ofof months. months. Intermittent Intermittent leave leave shall shall be taken in be taken in increments increments consistent consistent withwith the the established policy established policy of of the the employer employer oror covered covered business business entity entity uses uses to to account account for for use use of of other other forms of forms of leave; leave; provided, however, that provided, however, that the the Department Department willwill not not pay pay inin increments increments of of less less than than 15 minutes. 15 minutes. A covered individual A covered individual shall shall not not be permitted to be permitted to apply apply for for payment payment for for benefits benefits associated with associated with intermittent intermittent leave leave until until they they have have eight eight hours hours ofof accumulated accumulated leave leave time, time, unless unless more than more than 30 30 calendar calendar days days has has lapsed lapsed since since the the initial initial taking taking ofof such such leave. leave.

Job Protected Job Protected Leave. Leave. The The period period of of time time described described inin 458 CMR 2.16 458 CMR 2.16(1), immediately following 1 immediately following the first the first date date on on which which an an employee employee commences commences the the taking taking of of any any type type ofof leave leave that that is is associated associated qualifying reason, with aa qualifying with reason, regardless regardless of of whether whether anan application application for for benefits benefits hashas been submitted been submitted to the to the Department Department in in connection connection therewith therewith or or whether whether that that leave leave is is paid paid oror unpaid. unpaid. Employees Employees who do who do not not file file an an application application for for benefits with the benefits with the Department, Department, butbut use use any any other other type type of of leave, leave, including accrued including accrued paid leave or paid leave or unpaid unpaid leave leave approved approved by an employer, by an employer, leave leave under: under: temporary disability a) temporary disability policy or program policy or program of of an an employer; employer; (b) paid (b family, or paid family, or medical medical leave leave policy of an policy of an employer; employer; oror (c (c) an an Extended Extended Illness Illness Leave Leave Bank Bank provided provided by an employer, by an employer, andand taken taken for for aa qualifying qualifying reason, will reason, will be entitled to be entitled to job protected leave job protected leave as as of of the the date date of of commencing commencing such such leave leave and and that leave that leave will will run run concurrently concurrently with with the the leave leave period period provided provided in in M.G.L. M.G.L. c. c. 175M. 175M.

Medical Leave. Medical Leave. Leave Leave taken taken by by aa covered covered individual individual due due to to aa serious serious health health condition. condition.

Medical Leave Medical Leave Benefits. Benefits. Wage Wage replacement replacement paid paid pursuant to M.G.L. pursuant to M.G.L. c. 175M, §§ 3, c. 175M, 3, and and provided provided in accordance in accordance with with M.G.L. M.G.L. c. 2, to 175M, §§ 2, c. 175M, to aa covered covered individual individual while while the the covered covered individual individual is on is on medical medical leave. leave.

Municipality, District, Municipality, District, Political Political Subdivision Subdivision or or its its Instrumentality. Instrumentality. Shall Shall include include municipal municipal departments such departments such as as school school departments, departments, police departments, fire police departments, fire departments departments or or public works public works departments. departments.

Parent. The Parent. The biological, adoptive, step- biological, adoptive, step- or or foster-mother foster-mother or or father father of of the the covered covered individual. individual.

Pay Period. Pay Period. The The shortest shortest pay pay period period used used by by aa business business or or trade trade for for regular regular payments to any payments to any group of group of covered covered individuals individuals of of the the business or trade. business or trade.

Private Plan Private Plan Administrator. Administrator. The The third-party third-party administrator administrator of of an an employer's employer's or or covered covered business business entity's private entity's private paid family and/or paid family and/or medical medical leave leave plan. plan.

Qualifying Earnings. Qualifying Earnings. wages paid a) wages to an paid to an employee; employee; (b) payments (b payments by covered business by covered entities to business entities to covered covered contract contract workers; and workers; and earnings from c) earnings from self-employment self-employment on on which which aa self-employed self-employed individual individual is is making making contributions pursuant contributions pursuant to to 458 458 CMR CMR 2.06. 2.06.

Qualifying Exigency. Qualifying Exigency. A A need need arising arising out of aa covered out of covered individual's individual's family family member's member's active active duty duty service or service or notice notice of of an an impending impending call call or or order order toto active active duty duty in in the the Armed Armed Forces Forcesincluding, including, but but not limited not limited to, to, providing for the providing for the care care or or other other needs needs ofof the the military military member's member's child child or or other other family family member, making member, making financial financial or or legal legal arrangements arrangements for for the the military military member, member, attending attending counseling, counseling, attending military attending military events events or or ceremonies, ceremonies, spending spending time time with with the the military military member member during during aa rest rest and recuperation and recuperation leave leave or or following following return return from from deployment deployment or or making making arrangements arrangements following following the death the death of of the the military military member. member.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.02: continued 2.02: continued

Qualifying Reason. Qualifying Any of Reason. Any of the the following following reasons reasons for which aa covered for which covered individual individual is is eligible eligible for for family or family or medical medical leave leave benefits: benefits: toto bond bond with with aa child child during during the the first first 12 12 months months after after the the child's child's birth, adoption, or birth, adoption, or foster foster care care placement; placement; to to care for aa family care for family member's member's serious serious health health condition; condition; to care to for aa family care for family member member whowho is is aa covered covered service service member; member; aa qualifying qualifying exigency exigency arising arising out out family member's of aa family of member's active active duty duty or or impending impending callcall to to active active duty duty in in the the Armed Armed Forces; Forces; or or the the covered individual's covered individual's own own serious serious health health condition condition thatthat incapacitates incapacitates thethe individual individual fromfrom performing performing the the essential essential functions functions of of the the individual's individual's job. job.

Reduced Leave Reduced Leave Schedule. Schedule. A A leave leave schedule schedule that that reduces reduces the the usual usual number number of of hours hours per per workweek, or workweek, or hours hours per per workday, of aa covered workday, of covered individual. individual.

Individual. A Self-employed Individual. Self-employed sole proprietor, A sole sole member proprietor, sole member of of aa limited limited liability liability company company oror limited liability limited liability partnership partnership or or an an individual individual whose whose net net profit or loss profit or from aa business loss from is required business is required to be to reported to be reported to the the Massachusetts Massachusetts Department Department ofof Revenue; Revenue; provided, however, that provided, however, that such such individual resides individual resides in in Massachusetts. Massachusetts.

Serious Health Serious Health Condition. Condition. An An illness, illness, injury, injury, impairment impairment oror physical or mental physical or mental condition condition that that involves: involves: inpatient care (a) inpatient (a) hospital, hospice in aa hospital, care in hospice or or residential residential medical medical facility; facility; or or continuing treatment (b) continuing (b) treatment byby aa health health care care provider. provider.

Sibling. The Sibling. The biological, adoptive, step-brother biological, adoptive, step-brother or or step-sister step-sister of of aa covered covered individual. individual.

State Average State Average Weekly Weekly Wage. Wage. The The average average weekly weekly wage wage in in Massachusetts Massachusetts as as calculated calculated under under M.G.L. c. M.G.L. c. 151A, 151A, §§ 29(a) 29(a) and and determined determined by the Director by the Director of of the the Massachusetts Massachusetts Department Department of of Unemployment Assistance. Unemployment Assistance.

Trust Fund. Trust Fund. The The Family Familyand and Employment Employment Security Security Trust Trust Fund Fundestablished established in in M.G.L. M.G.L. c. c. 175M, 175M, §§ 7. 7.

Wages. Shall Wages. Shall have have the the same same meaning meaning as as provided in M.G.L. provided in M.G.L. c. c. 151A, 151A, §§ 1(s). l(s).

Weekly Benefit Weekly Benefit Amount. Amount. TheThe amount amount of of wage wage replacement replacement paid to aa covered paid to covered individual individual on on aa weekly basis weekly while the basis while the covered covered individual individual is is on on family family or or medical medical leave, leave, as as provided in provided in M.G.L. c. M.G.L. c. 175M, 175M, §§ 3. 3.

2.03: Covered 2.03: Covered Business Business Entities Entities and and Covered Covered Contract Contract Workers Workers

A business A or trade business or trade shall shall annually annually determine determine if if it it is is aa covered covered business business entity entity by the following by the following method: method: 1) 1) The The business business or or trade trade shall shall count count the the total total number number of of self-employed self-employed individuals individuals with with whom whom the business the or trade business or trade contracted contracted for for services services during during each each pay period in pay period in the the previous calendar year previous calendar year and was and was required required to to report report the the payment payment forfor such such services services on on IRS IRS Form Form1099-MISC. 1099-MISC.

(2) The (2) The business or trade business or trade shall shall then then calculate calculate its its total total workforce workforce by adding the by adding the number number of of self-employed individuals self-employed individuals counted counted inin 458 458 CMR CMR 2.03(1) 2.03(1) toto the the total total number number ofof employees, employees, including full including full time, time, part-time, and seasonal part-time, and seasonal employees, employees, that that the the business or trade business or trade employed employed during each during each pay period in pay period in the the previous calendar year. previous calendar year.

(3) If (3) If the the number number calculated calculated in in 458 458 CMR CMR 2.03(1) 2.03(1) is is greater greater than than 50% 50% of of the the number number calculated calculated in 458 in 458 CMR CMR 2.03(2), 2.03(2), then, then, for for the the following following calendar calendar year, the business year, the business or or trade is aa covered trade is covered business entity, and business entity, and the the self-employed self-employed individuals individuals who who contract contract with with the the trade trade or or business are business are covered contract covered contract workers. workers.

(4) Notwithstanding (4) the requirements Notwithstanding the requirements set set forth forth in in .03(1) .03(1) through through (3), (3), self-employed self-employed individuals or individuals or covered covered contract contract workers workers properly classified in properly classified in accordance accordance with with M.G.L. M.G.L. c.c. 15 lA, 151A, §§ 22 are are not not considered considered part part of of an an employer's employer's workforce. workforce.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND LEAVE MEDICAL LEAVE

2.04: Registration and 2.04: Registration and Filing Filing 1) 1) Registration. Registration. An An employer, employer, covered covered business business entity, entity, and and any any self-employed self-employed individual individual who who elects coverage elects coverage under under 458 458 CMR CMR 2.06 2.06 shall shall remit remit contributions contributions owed owed under under 458 CMR 2.05 458 CMR 2.05 through the through the Massachusetts Massachusetts Department Department ofof Revenue's Revenue's Mass Tax system. Employers MassTaxConnect system. Employers andand covered business covered business entities entities shall shall likewise likewise file file employment employment and and wage wage detail detail reports reports through through the the MassTaxConnect system. MassTaxConnect system. Employers, covered business Employers, covered entities, and business entities, and self-employed self-employed individuals individuals who elect who elect coverage coverage and and who who do do not not have have preexisting preexisting accounts accounts onon the the MassTaxConnect MassTaxConnect systemsystem shall register shall register and and establish establish an an account account in in order order to to make make filings filings and and remit remit contributions contributions required required under M.G.L. under M.G.L. c.c. 175M, 175M, and and .00. 458 CMR 2.00.

(2) Quarterly (2) Quarterly Filing Filing and and Contribution Contribution Payment. Payment. Following Following the the end end ofof each each calendar calendar quarter, quarter, every employer every employer andand covered covered business entity and business entity and any any self-employed self-employed individual individual who who has has elected elected coverage shall coverage shall file file an an employment employment and and wage wage detail detail report report and and payment payment for for their their contribution contribution through the through the MassTaxConnect MassTaxConnect system system on on or or before before the the quarterly quarterly filing filing deadline deadline established established by the by the Massachusetts Department Massachusetts Department of of Revenue. Revenue. (a) The (a) The employment employment and and wage wage detail detail report report shall shall contain contain the the following following information information for for each each employee, covered employee, covered contract contract worker, worker, and and self-employed self-employed individual individual electing electing coverage: coverage: 1. name; 1. name; 2. Social 2. Social Security Security Number Number or or individual individual taxpayer taxpayer identification identification number; and number; and 3. wages 3. wages paid paid oror other other earnings. earnings. (b) The (b) The report report shall shall contain: contain: 1. for 1. for each each employer employer or or covered covered business business entity entity the the federal federal employer employer identification identification number that number that such such employer employer oror covered covered business entity is business entity is required required toto include include onon aa withholding tax withholding tax return return filed filed pursuant pursuant toto M.G.L. M.G.L. c. c. 62B; 62B; and and 2. for 2. for each each self-employed self-employed individual individual who who hashas elected elected coverage, coverage, thethe Social Social Security Security Number Number or or Individual Individual Taxpayer Taxpayer Identification Identification Number Number of of the the self-employed self-employed individual. individual.

(3) Covered (3) Covered Contract Contract Workers. Workers. IfIf an an employer employer oror covered covered business entity made business entity made payments payments to to individuals for individuals for services services during during the the calendar calendar quarter quarter that that are are required required to to be reported on be reported on IRS IRS Form Form 1099-MISC, the 1099-MISC, the employer employer must must also also report report the the names names and and Social Social Security Security numbers numbers or or Individual Individual Taxpayer Identification Taxpayer Identification numbers numbers of of those those individuals, individuals, and and the the amounts amounts ofof such such payments made. payments made.

(4) Veracity/False (4) Veracity/False Statements. Statements. Without Without limitation, limitation, any any employer, employer, covered covered business entity, or business entity, or self-employed person self-employed electing coverage person electing coverage who who makes makes aa false false statement statement oror representation representation oror withholds aa material willfully withholds willfully material fact fact with with regard regard to to any any of of the the information information required required by 458 CMR by 458 CMR 2.04, 458 2.04, CMR 2.00 .00 generally, generally, or or M.G.L. M.G.L. c. c. 175M 175M may may be be subject subject to to penalties, including those penalties, including those under M.G.L. under M.G.L. c. c. 62C, 62C, §§ 73. 73.

2.05: Contributions 2.05: Contributions

(1) Generally. (1) Generally. (a) Contributions (a) Contributions areare the the payments payments made made to to the the Family Family and and Employment Employment Security Security Trust Trust Fund established Fund established inin M.G.L. M.G.L. c. 175M, §§ 77 by c. 175M, by anan employer, employer, aa covered covered business business entity, entity, anan employee, aa covered employee, covered contract contract worker, worker, oror aa self-employed self-employed individual individual electing electing coverage. coverage. (b) Beginning (b) Beginning on on October October 1,1, 2019, 2019, the the initial initial contribution contribution rate rate shall shall be be 0.75% 0.75% ofof all all wages wages or other or other qualifying qualifying earnings earnings or or payments, payments, as as limited limited by 258 CMR by 258 CMR 2.05(1)(c) 2.05(1)(c) andand (d). (d). si Annually, not later Annually, not later than October 11 ,, the than October st the Director Director shall shall set set the the contribution contribution rate rate for for the the upcoming calendar upcoming calendar year, as required year, as required by M.G.L. c. by M.G.L. 175M, §§ 7(e). c. 175M, 7(e). (c) Contributions (c) Contributions shall shall not not be required for be required for covered covered individuals' individuals' wages wages or or other other qualifying qualifying earnings or earnings or payments payments above above thethe contribution contribution and and base base limit limit established established annually annually by the by the federal Social federal Social Security Security Administration Administration for for purposes purposes of of the the Federal Federal Old-age, Old-age, Survivors, Survivors, and and Disability Insurance Disability Insurance program program limits limits pursuant pursuant to to 42 42 U.S.C. U.S.C. 430. 430. (d) An (d) An employer employer or or covered covered business entity with business entity with anan average average total total workforce workforce in in Massachusetts of Massachusetts of fewer fewer than than 25 25 persons, including employees persons, including employees and and covered covered contract contract workers, workers, as determined as determined by the method by the method specified specified inin .05(2), .05(2), shall shall not not be required to be required to pay the pay the employer portion employer of premiums portion of premiums for for family family and and medical medical leave, leave, as as defined defined inin 4 5 CMR 2.0 5 .05(5).

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND LEAVE MEDICAL LEAVE

2.05: continued 2.05: continued

(2) Average (2) Average Total Total Workforce Workforce Count. Count. An An employer employer or or covered covered business entity shall business entity shall annually annually determine its determine its workforce workforce count count based based onon the the previous calendar year previous calendar year by by counting counting the the number number of of employees, including employees, including full full time, time, part-time, and seasonal part-time, and seasonal employees employees on on the the payroll payroll during during each each pay pay period and period and dividing dividing by the number by the number of of pay periods. If pay periods. If an an employer employer or or covered covered business entity business entity contracted with contracted with individuals individuals forfor services services during during any any pay period and pay period and isis required required toto report report the the payment to payment to such such individuals individuals on on IRS IRS Form Form1099-MISC, 1099-MISC, those those covered covered contract contract workers workers mustmust be be included in included in the the count count forfor the the pay period. pay period. An employer An employer or or aa covered covered business entity with business entity with an an average average total total workforce workforce that that consists consists ofof more than more than 50% 50% self-employed self-employed individuals individuals forfor whom whom thethe employer employer isis required required to to report report payment payment for services for services onon Internal Internal Revenue Revenue Service Service form form 1099-MISC 1099-MISC shall shall count count those those self-employed self-employed individuals as individuals as covered covered contract contract workers workers for for the the purposes purposes ofof determining determining the the size size ofof the the employer's or employer's or covered covered business entity's average business entity's average total total workforce workforce pursuant pursuant to to 458 458 CMR CMR 2.05(2). 2.05(2).

(3) Required (3) Required Remittance Remittance of of Contributions. Contributions. An An employer employer or or covered covered business entity shall business entity shall be be required to required to remit remit contributions contributions for for all all employees employees and and covered covered contract contract workers. workers. Notwithstanding Notwithstanding the foregoing, the foregoing, the the Department Department may may refund refund contributions contributions paid paid by or on by or on behalf behalf of of an an employee, employee, covered contract covered contract worker, or self-employed worker, or self-employed individual individual who who has has elected elected coverage, coverage, where where thethe contribution remitted contribution remitted was was greater greater than than required required under under M.G.L. M.G.L. c.c. 175M, 175M, oror .00, 458 CMR or 2.00, or both. both.

(4) Allocation (4) Allocation of of Contribution Contribution Rate Rate between between Family Family Leave Leave and and Medical Medical Leave. Leave. The The total total contribution rate contribution rate shall shall be be allocated allocated between the family between the family leave leave contribution contribution rate rate and and the the medical medical leave contribution leave contribution rate. rate. The The rate rate allocation allocation will will be be based based on on the the Department's Department's estimate estimate of of the the anticipated costs anticipated costs of of benefits and administration benefits and administration ofof the the program. program. When When the the Department Department deems deems it necessary it necessary to to do do so, so, but but no no more more than than once once aa year, it may year, it may adjust adjust the the allocation allocation of of rates. rates.

(5) Allocation (5) Allocation of of Contributions Contributions between Employers and between Employers and Employees Employees and and Covered Covered Contract Contract Workers. In Workers. In accordance accordance with with applicable applicable laws laws andand regulations, regulations, including including the the required required notice notice under M.G.L. under M.G.L. c. c. 175M, 175M, §§ 4(a), 4(a), an an employer employer oror aa covered covered business entity may business entity may deduct deduct up up to to certain certain defined percentages defined percentages of of the the required required medical medical leave leave and and family family leave leave contributions contributions directly directly from from wages or wages or other other qualifying qualifying payments made to payments made to an an employee employee or or covered covered contract contract worker. worker. The employer's The employer's or or covered covered business business entity's entity's portion portion ofof the the contribution contribution is is that that part part of of the the full full contribution amount contribution amount not not deducted deducted from from wages wages paid paid or or other other qualifying qualifying payments payments made made to to the the employee or employee or covered covered contract contract worker. worker. The The employer employer or or covered covered business entity in business entity in all all instances instances shall be shall responsible for be responsible for paying and remitting paying and remitting thethe remainder remainder of of any any required required contribution contribution not not lawfully deducted lawfully deducted from from thethe employee employee or or covered covered contract contract worker. worker. (a) Medical (a) Medical LeaveLeave Contribution. Contribution. An An employer employer or or covered covered business business entity entity may may deduct deduct fromfrom an employee's an employee's wageswages or or from from qualifying qualifying payments payments made made toto aa covered covered contract contract worker worker up up to to 40% of 40% of the the medical medical leave leave contribution contribution required required forfor that that employee employee or or covered covered contract contract worker. worker. (b) Family (b) FamilyLeaveLeave Contribution. Contribution. An An employer employer or or covered covered business business entity entity may may deduct deduct fromfrom an employee's an employee's wages wages or or from from qualifying qualifying payments payments mademade to to covered covered contract contract worker worker up up to to 100% of 100% of the the family family leave leave contribution contribution required required forfor that that employee employee or or covered covered contract contract worker. worker. (c) An (c) An employer employer or or covered covered business business entity entity shall shall not not deduct deduct aa greater greater percentage percentage of of the the medical leave medical leave andand family family leave leave contributions contributions than than thethe maximum maximum authorized authorized by by M.G.L. c. M.G.L. c. 175M, 175M, §§ 6(e)(1) 6(e)(l) and and (2). (2). An An employer employer or or covered covered business business entity entity that that opts opts toto deduct aa lower deduct lower percentage percentage of of medical medical or or family family leave leave contributions contributions than than thethe maximum maximum allowable deductions allowable deductions specified specified in in 458 458 CMR CMR 2.05(5)(a) 2.05(5)(a) andand (b) (b) shall shall still still be be required required to to remit remit the full the full amount amount of of contribution contribution amount amount owed owed pursuant pursuant to to .05(6). 458 CMR 2.05(6). (d) An (d) An employer employer or or covered covered business business entity entity may may choose choose to to deduct deduct differing differing percentages percentages from the from the wages wages or or qualifying qualifying payments payments of of different different groups groups ofof covered covered individuals, individuals, butbut itit shall shall not deduct not deduct moremore than than the the maximum maximum percentages percentages authorized authorized by M.G.L. c. by M.G.L. 175M, §§ 6(e)(1) c. 175M, 6(e)(l) and (2) and (2) from from anyany employee employee or or covered covered contract contract worker. worker.

(6) Remitting (6) Remitting Contributions. Contributions. Based Based onon the the quarterly quarterly Employment Employment andand Wage Wage Detail Detail Report Report filed filed by an employer, by an employer, covered covered business business entity, entity, or or self-employed self-employed individual individual electing electing coverage, coverage, the the Department will Department will calculate calculate the the total total quarterly quarterly contribution contribution amount amount owed. owed. Contributions Contributions owed owed must be must be remitted remitted toto the the Department Department through through the the Massachusetts Massachusetts Department Department ofof Revenue's Revenue's MassTaxConnect system MassTaxConnect system onon oror before before thethe quarterly quarterly filing filing deadlines deadlines established established by the by the Massachusetts Department Massachusetts Department of of Revenue. Revenue.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OFFAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.05: continued 2.05: continued

(7) Penalty. (7) Penalty. An An employer employer or or covered covered business business entity entity who who fails fails or or refuses refuses toto make make contributions contributions as required as required inin .05(6) .05(6) shall shall be assessed an be assessed an amount amount equal equal to to its its total total annual annual payroll payroll for for employees and employees and covered covered contract contract workers workers for for each each year year oror fraction fraction thereof thereof that that it it failed failed to to comply comply multiplied by multiplied the then-current by the then-current annual annual contribution contribution rate rate required required under under M.G.L. M.G.L. c. 175M, §§ 6(a), c. 175M, 6(a), in addition in addition toto the the total total amounts amounts of of benefits paid to benefits paid to covered covered individuals individuals for for whom whom it it failed failed to to make contributions. make contributions. The The Department Department may may waive waive oror modify modify any any penalty penalty oror assessment assessment imposed imposed or due or due hereunder hereunder uponupon aa showing showing of of good good cause. cause. An employer An employer or or covered covered business business entity entity that that failed failed to to properly assess the properly assess the allowable allowable deduction deduction from an from an employee employee or or covered covered contract contract worker worker oror is is assessed assessed aa charge charge against against payroll payroll for for failure failure to remit to remit required required contributions contributions or or that that is is required required to to repay repay the the Trust Trust Fund Fundthethe cost cost of of benefits benefits paid paid to covered to covered individuals individuals for for whom whom it it failed failed to to make make contributions contributions shall shall not not recoup recoup anyany assessment assessment or cost or cost of of repayment repayment through through charges charges against against employees employees or or covered covered individual. individual.

2.06: 2.06: O Coverage for Optional Coverage for Self-employed Self-employed Individuals Individuals or or Employers Employers Not Subject to Not Subject to M.G.L. M.G.L. c. c. 175M 175M

(1) A (1) self-employed individual A self-employed individual may may elect elect coverage coverage under under M.G.L. M.G.L. c. c. 175M 175M and become aa and become covered individual covered individual for for an an initial initial period period of of not not less less than than three three years. years.

(2) To (2) To elect elect coverage coverage aa self-employed self-employed individual individual shall, shall, during during aa period designated by period designated the by the Department, file Department, file aa Self-employed Self-employed Notice of Election Notice of Election with with the the Department Department through through the the Massachusetts Department Massachusetts Department ofof Revenue's Revenue's MassTaxConnect MassTaxConnect system system and and thereafter thereafter register, register, file, file, and make and make contributions contributions toto the the Family Family and and Employment Employment Security Security Trust Trust Fund Fund pursuant pursuant toto .03, 458 CMR 2.03, 2.04 2.04 and and 2.06. 2.06.

(3) The (3) The election election shall shall be be effective effective on on the the date date the the Self-employed Self-employed Notice of Election Notice of Election is is accepted accepted by the Department, by the Department, butbut aa self-employed self-employed individual individual who who elects elects coverage coverage shall shall not not be be eligible eligible to to receive paid receive paid leave leave benefits until the benefits until the individual individual has has remitted remitted the the required required contributions contributions for for at at least least two out two out of of four four completed completed calendar calendar quarters. quarters.

(4) (4) A self-employed A self-employed individual individual who who elects elects coverage coverage shall shall be responsible for be responsible for the the full full contribution amount, contribution amount, based based on on that that individual's individual's income income from from self-employment. self-employment. If If aa self-employed individual self-employed individual elects elects coverage coverage andand thereafter thereafter fails fails to to remit remit contributions contributions owed owed for for the the required minimum required minimum period period of of three three years, coverage shall years, coverage shall be terminated. At be terminated. At the the discretion discretion of of the the Director, the Director, the self-employed self-employed individual individual may may be be disqualified disqualified from from electing electing coverage coverage thereafter thereafter asas aa self-employed self-employed individual, individual, but but shall shall not not be be precluded precluded from from obtaining obtaining coverage coverage asas an an employee employee or covered or covered contract contract worker. worker. A A self-employed self-employed individual individual who who elects elects coverage coverage and and thereafter thereafter fails fails to remit to remit contributions contributions for for at at least least three three years years shall shall not not be disqualified from be disqualified from future future coverage coverage ifif the the individual was individual was not not required required to to remit remit such such contributions contributions because because thethe self-employment self-employment ended, ended, oror the individual the individual moved moved away away from from Massachusetts. Massachusetts.

(5) A (5) self-employed individual A self-employed individual who who is is required required toto be treated as be treated as aa covered covered contract contract worker worker by by aa covered covered business business entity entity to to whom whom the the self-employed self-employed individual individual provides services and provides services and whose whose payment for payment for those those services services is is subject subject to to contributions contributions pursuant pursuant toto .05(3), .05(3), may may elect elect coverage and coverage and remit remit contributions contributions onon additional additional income income fromfrom self-employment self-employment thatthat is is unrelated unrelated to services to services provided provided to to aa covered covered business business entity. entity.

(6) An (6) An employer employer may may become become aa covered covered employer employer under under M.G.L. M.G.L. c. c. 175M 175M by submitting an by submitting an Employer Notice Employer Notice of of Election Election through through an an officer, officer, director director or or principal principal of of the the employer employer inin accordance with accordance with the the filing filing requirements requirements set set forth forth in in .04 .04 and: and: (a) Electing (a) Electing coverage coverage and and remaining remaining aa covered covered employer employer for for aa minimum minimum termterm ofof one one year; year; Complying with (b) Complying (b) with all all audits audits or or requests requests for for information information from from thethe Department; Department; and and (c) Certifying (c) Certifying that that the the employer employer shall shall provide the Department provide the Department withwith not not less less than than 60 60 calendar calendar days notice days notice before withdrawing its before withdrawing its Notice Notice ofof Election Election to be aa covered to be covered employer. employer. The election The election shall shall be effective on be effective on the the date date the the Covered Covered Employer Employer Notice Notice of of Election Election is is submitted through submitted through thethe Massachusetts Massachusetts Department Department of of Revenue's Revenue's MassTaxConnect MassTaxConnect system system and and is accepted is accepted by the Department, by the Department, but but aa covered covered employer employer that that elects elects coverage coverage shall shall not not be be eligible to eligible to receive receive paid leave benefits paid leave until the benefits until the covered covered employer employer has has remitted remitted the the required required contributions for contributions for at at least least two two out out of of four four completed completed calendar calendar quarters. quarters.

458 DEPARTMENT OF CMR: DEPARTMENT 458 CMR: OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.06: continued 2.06: continued

A covered employer A covered employer that that has has elected elected coverage coverage pursuant pursuant to to .06(6) 458 CMR 2.06(6) and and that that has has failed to failed to remit remit contributions contributions for for more more than than two two out out of of four four completed completed calendar calendar quarters quarters shall shall be be disqualified from disqualified from coverage. coverage.

(7) For (7) For purposes purposes of of .00, .00, reporting reporting of of the the adoption adoption of of M.G.L. M.G.L. c.c. 1175M, §§ 110 is is completed by completed by filing filing through through the the Federal Federal Employer Employer Identification Identification Number(s) ofthe Number(s) of the municipality, municipality, district, political district, political subdivision subdivision or or authority. authority.

(8) Housing (8) Housing authorities, authorities, regional regional school school districts districts and and regional regional planning planning commissions commissions which which are are not part not of aa municipality, part of municipality, district, district, political political subdivision subdivision or or its its instrumentalities, instrumentalities, may may adopt adopt the the provisions of provisions of M.G.L. M.G.L. c.c. 1175M §§ 110 through through aa vote vote ofof their their governing governing bodies. Horace Mann bodies. Horace Mann Charter Schools' Charter Schools' employees employees areare considered considered municipal municipal employees employees for for the the purposes purposes of of collective collective bargaining. Therefore, Horace bargaining. Therefore, Horace Mann Mann Charter Charter Schools Schools are are subject subject to to the the decision decision of ofthe the municipal municipal legislative body legislative body as as to to the the adoption adoption of of M.G.L. M.G.L. c.c. 1175M. The Department The Department will will individually individually evaluate evaluate aa request request by by any any municipality, municipality, district, district, political political subdivision or subdivision or authority authority that that does does not not fall fall within within this this definition. definition.

2.07: Application for 2.07: Application for Exemption Exemption Due Due to to Approved Approved Private Private Plan Plan 1) 1 Application. Application. An An employer employer or or covered covered business business entity entity maymay apply apply to to the the Department Department for for an an exemption from exemption from certain certain obligations obligations underunder M.G.L. M.G.L. c. c. 1175M by by demonstrating demonstrating that that it it offers offers paid paid family and/or family and/or medical medical leaveleave benefits benefits to to covered covered individuals individuals in in its its workforce workforce through through aa private private plan. plan. AnAn employer employer or or covered covered business business entity entity seeking seeking an an exemption exemption must submit aa Request must submit Request for for Exemption through Exemption through the the Massachusetts Massachusetts Department Department of of Revenue's Revenue's MassTaxConnect MassTaxConnect system. system. Employers and Employers and covered covered business business entities entities seeking seeking an an exemption exemption that that dodo not not have have preexisting preexisting accounts on accounts on the the MassTaxConnect MassTaxConnect system system shall shall register register and and establish establish an an account account in in order order to to request an request an exemption. exemption. (a) Partial (a) Partial Exemptions. Exemptions. 11. An An employer employer or or covered covered business business entityentity may may applyapply for for exemption exemption from from the the requirement to requirement to make make contributions contributions for for medical medical leave leave coverage, coverage, family family leave leave coverage, coverage, or both. or both. 2. 2. AnAn employer employer or or covered covered business business entity entity may may notnot apply apply forfor anan exemption exemption on on behalf behalf only aa portion of only of portion of of its its covered covered workforce. workforce. All All employees employees and and covered covered contract contract workers workers and former and former employees employees under under M.G.L. M.G.L. c. c. 1175M mustmust be be included included in in the the employer's employer's or or covered business covered business entity's entity's private private plan plan inin order order to to be be approved approved for for an an exemption. exemption. (b) Exemption (b) Exemption from from Contributions Contributions and and Filing Filing Requirements. Requirements. 11. IfIf approved, approved, the the employer employer or or covered covered business business entityentity shall shall be be exempt exempt from from the the requirement to requirement to make make contributions contributions to to the the Trust Trust Fund Fund pursuant pursuant to to M.G.L. M.G.L. c. c. 1175M, §§ 6, 6, and 458 and CMR 2.05 .05 forfor the the approved approved leave leave type (family, medical, type (family, medical, or or both). both). AnAn employer employer or covered or covered business business entity entity approved approved for for one one leave leave type type only only (either (either family family or or medical) medical) must remit must remit contributions contributions owed owed under under 458 .052.05 forfor the the leave leave type for which type for which it it has has not been not been approved. approved. 2. 2. IfIf approved, approved, the the employer employer or or covered covered business business entity entity shall shall be exempt from be exempt from thethe filing filing requirements of requirements of 458 .04 for the 2.04 for the approved approved leaveleave typetype (family, (family, medical, medical, or or both.) both.) An employer An employer or or covered covered business entity approved business entity approved for for one one leave leave type type only only (either (either family family or medical) or medical) must file aa return must file return under under 458 .04 2.04 for for the the leave leave type type for for which which it it has has not not been approved. been approved. Application Timing (c) Application (c) Timing and and Effective Effective Date Date of of Coverage. Coverage. 11. Coverage Coverage underunder aa private private plan plan shall shall begin begin for for all all employees employees and and covered covered contract contract workers no workers no later later than than thethe first first day day of of the the first first quarter quarter immediately immediately following following the the date date ofof approval of approval of the the private private planplan exemption exemption or or onon the the date date ofof hire hire of of the the employee employee or or covered covered contract worker contract worker for for private private plans plans already already approved. approved. Employers Employers or or covered covered business business entities that entities that have have been been approved approved for for aa private private plan plan exemption exemption may may require require anan employee employee or covered or covered contract contract worker worker to to provide provide verification verification of of wages wages earned earned withwith anan employer employer or or covered business covered business entity entity in in the the Commonwealth Commonwealth for for purposes purposes of of determining determining whether whether that that employee or employee or covered covered contract contract worker worker meets meets the the financial financial eligibility eligibility requirements requirements of of M.G.L. M.G.L. c. c. 1175M, §§ 11.

458 CMR: DEPARTMENT 458 CMR: OF FAMILY DEPARTMENT OF AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.07: continued 2.07: continued

2. Applications for 2. Applications for such such exemptions exemptions will will be be accepted accepted and and reviewed reviewed by by the the Department Department on aa rolling on rolling basis basis and and will will be be effective effective no no earlier earlier than than the the quarter quarter immediately immediately following following the date the date of of approval. approval. Exemptions Exemptions fromfrom contributions contributions will will be be effective effective for for up up to to one one year year and may and may bebe renewed renewed annually. annually. TheThe Department Department may establish aa shorter may establish shorter or or greater greater term term of approval of approval of of the the private private plan plan when when the the Department Department deems deems itit necessary. necessary. If If the the term term of of an approval an approval of ofaa private private plan plan isis reduced reduced by by the the Department, Department, thethe Department Department shall shall provide provide the employer the employer with with 6060 calendar calendar days days notice notice prior prior to to doing doing so. so. An An employer employer or or covered covered business entity business entity offering offering paid paid family family and and medical medical leave leave benefits benefits to to its its workforce workforce through through aa private private plan plan may may submit submit an an application application for for approval approval toto the the Department Department no no more more frequently than frequently than once once per per quarter. quarter.

(2) Requirements (2) Requirements for for Exemption. Exemption. To To bebe approved approved for for an an exemption exemption from from the the requirement requirement to to remit contributions, remit contributions, an an employer's employer's or or covered covered business business entity's entity's private private plan plan must: must: (a) confer (a) confer all all the the same same or or better better benefits benefits as as those those provided provided to to employees employees and and covered covered contract workers contract workers under under M.G.L. M.G.L. c. c. 1175M including, including, but but not not limited limited to, all of to, all of the the requirements requirements specified in specified in M.G.L. M.G.L. c. c. 1175M, §§ 111; (b) not (b) not cost cost employees employees and and covered covered contract contract workers workers more more than than they they would would be be charged charged toto be eligible be eligible toto receive receive paidpaid leave leave benefits benefits from from the the Trust Trust Fund Fund administered administered by by the the Department pursuant Department pursuant to to M.G.L. M.G.L. c. c. 175M. 175M. Additionally, Additionally, the the employer's employer's or or covered covered business business entity's policies entity's policies concerning concerning family family or or medical medical leaveleave must must provide provide equivalent equivalent or or better better rights rights and protections and protections as as those those provided provided in in M.G.L. M.G.L. c. c. 1175M, including, including, for for employers, employers, the the job- and job- and benefit-protection provisions benefit-protection provisions of of M.G.L. M.G.L. c. c. 1175M, §§ 22 andand the the non-retaliation non-retaliation provisions provisions of of M.G.L. M.G.L. c. c. 1175M, §§ 9. 9. TheThe employer employer or or covered covered business business entity entity mustmust certify certify toto the the Department that Department that its its private private planplan meets meets these these requirements; requirements; (c) provide (c) provide forfor an an appeals appeals process process with with thethe private private plan plan administrator administrator before before aa covered covered individual can individual can exercise exercise its its right right of of appeal appeal withwith thethe Department Department pursuant pursuant to to 458 CMR 458 CMR 2.07(6)(a) and 2.07(6)(a) and 458 .1 2.14. ThisThis private private plan plan appeals appeals process process shallshall not not require require the the covered individual covered individual toto submit submit an an appeal appeal lessless than than ten ten calendar calendar daysdays from from the the receipt receipt of of notice notice of the of the determination. determination. The The private private plan plan appeals appeals process process must must extend extend the the ten ten calendar-day calendar-day filing period filing period where where an an individual individual establishes establishes to to the the satisfaction satisfaction of of the the Department Department that that circumstances beyond circumstances beyond the the individual's individual's control control prevented prevented the the filing filing ofof aa request request forfor an an appeal appeal within the within the prescribed prescribed ten-day ten-day filing filing period; period; provide notice (d) provide (d) notice to to the the covered covered individual individual as as part part of of any any adverse adverse determination determination under under the the private plan private plan as as to to their their rights rights under under the the private private planplan as as well well asas the the rights rights afforded afforded thethe employee or employee or covered covered contract contract worker worker pursuant pursuant to to M.G.L. M.G.L. c. c. 1175M, and and 458 .00; 2.00; and and (e) for (e) for purposes purposes of ofdetermining determining the the benefit benefit amount amount and and leave leave allotment allotment underunder aa private private plan, plan, the weekly the weekly benefit benefit amount amount and and leave leave allotment allotment shallshall be be based based on on the the covered covered individual's individual's average working average working weekweek in in addition addition to to the the wages wages or or qualified qualified earnings earnings earnedearned with with the the employer or employer or covered covered business business entity entity at at the the time time of of an an application application for for benefits. benefits.

(3) If (3) If an an employer's employer's or or covered covered business entity's plan business entity's plan is is aa paid paid family family and/or and/or medical medical leave leave plan plan issued by issued by an an insurance insurance carrier, carrier, the the forms forms of of the the policy policy mustmust be be issued by aa Massachusetts issued by Massachusetts licensed insurance licensed insurance company. company. The The insurance insurance carrier carrier providing providing Massachusetts Massachusetts paidpaid family family or or medical leave medical leave coverage coverage must must first first submit submit its its policy policy forms forms toto the the Massachusetts Massachusetts Division Division of of Insurance. Insurance. TheThe Massachusetts Massachusetts Division Division ofof Insurance Insurance will will review review andand acknowledge acknowledge the the policy policy form to form to have have met met the the Department's Department's requirements requirements forfor the the grant grant of of aa private private plan plan exemption. exemption.

(4) If (4) If an an employer's employer's or or covered covered business business entity's entity's plan plan isis in in the the form form of of self-insurance, self-insurance, the the employer or employer or covered covered business business entity entity must must furnish furnish toto the the Department Department aa surety surety bond bond with with the the Commonwealth of Commonwealth of Massachusetts Massachusetts asas Obligee Obligee inin such such form form as as may may be be approved approved byby the the Department and Department and in in such such amount amount as as may may be be required required byby the the Department. The surety Department. The surety company company issuing the issuing the bond bond must must be be authorized authorized to to transact transact business business in in Massachusetts. Massachusetts.

(5) Review. (5) Review. An An employer employer oror covered covered business business entity entity that that is is denied denied an an exemption exemption from from the the requirement to requirement to remit remit contributions contributions and and that that believes believes in in good good faith faith that that its its private private plan plan meets meets or or exceeds the exceeds the requirements requirements for for exemption exemption maymay request request supplementary supplementary review review byby the the Department. Department. A request for A request for review review ofof aa denied denied exemption exemption is is aa form form ofof discretionary discretionary relief relief and and the the determination of determination of the the Department Department isis not not subject subject to to further further administrative administrative appeal. appeal. (a) Method. (a) Method. An An employer employer or or covered covered business business entity entity must must submit submit the the review review request request electronically using electronically using the the Massachusetts Massachusetts Department Department of of Revenue's Revenue's MassTaxConnect MassTaxConnect system.system.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2.07: continued 2.07: continued

(b) Timing. (b) Timing. An An employer employer covered covered business business entity entity must must submit submit the the review review request request on on or or before the before the last last day day of of the the quarter quarter prior prior to to the the effective effective date date of of the the request request for for an an exemption. exemption.

(6) Retained (6) Retained Rights Rights for for Covered Covered Individuals Individuals under under Private Private Plans. Plans. (a) A (a) A covered covered individual individual who who isis denied denied family family oror medical medical leave leave benefits benefits byby aa private private plan plan have aa right shall have shall right to to appeal appeal the the denial denial before before the the Department Department andand in in the the district district court court as as provided by provided by 458 458 CMR CMR 2 . 1 and M.G.L. 2.14(5), and M.G.L. c.c. 1175M, §§ 8(d). 8(d). (b) An (b) An employee employee covered covered byby aa private private plan plan approved approved under under 458 458 CMR CMR 2.072.07 shall shall retain retain all all applicable rights applicable rights under under M.G.L. M.G.L. c. c. 1175M, §§§ 2(e) 2(e) and and (f) (f) and and under under M.G.L. M.G.L. c. c. 1175M, §§ 9. 9. (c) The (c) The private private plan plan administrator administrator andand employer employer oror covered covered business business entity entity shall shall bebe required required to furnish to furnish the the Department Department allall application application forfor benefits benefits documentation documentation thatthat is is retained retained byby the the private plan private plan administrator administrator or or employer employer within within ten ten business days of business days of the the request request by by the the Department in Department in connection connection with with anan appeal of aa denial appeal of denial of of family family or or medical medical leave leave benefits by benefits by the employee the employee or or covered covered contract contract worker. worker. (d) Any (d) Any determination determination by by the the Department Department in in connection connection with with the the appeal appeal of of the the denial denial of of family or family or medical medical leave leave under under thethe private private plan plan shall shall be be binding binding onon the the private private plan plan administrator and administrator and employer employer or or covered covered business business entity. entity. (e) In (e) In the the case case of of aa covered covered individual individual covered covered solely under aa private solely under private plan, plan, thethe covered covered individual shall individual shall not not be be entitled entitled to to file file an an application application forfor benefits benefits with with the the Department. Department.

(7) Audits, (7) Withdrawal of Audits, Withdrawal of Approval, Approval, and and Penalties Penalties for for Private Private Plans. Plans. (a) The (a) The Department Department may may audit audit any any approved approved private private planplan maintained maintained by by anan employer employer or or covered business covered business entity entity and and maymay require require periodic periodic reporting reporting to to ensure ensure that that aa private private planplan complies with complies with thethe requirements requirements of ofM.G.L. c. c. 1175M, 458 .00, 2.00, oror other other state state or or federal federal law. law. (b) Employers (b) Employers and and covered covered business business entities entities with with approved approved private private plans plans must must retain retain allall reports, information, reports, information, and and records records related related to to the the approved approved plan, including those plan, including those related related to to all all applications for applications for benefits benefits made made under under thethe plan, for three plan, for years, and three years, and must must furnish furnish samesame to to the the Department upon Department upon request. request. (c) The (c) The Department Department may may withdraw withdraw approval approval for for aa private private plan plan when when terms terms oror conditions conditions of of the plan the plan have have beenbeen changed changed or or violated. Causes for violated. Causes for termination termination of of plan plan approval approval shall shall include, but include, but not not bebe limited limited to to the the following: following: failure to 11. failure to pay pay benefits; benefits; 2. failure to 2. failure to pay pay benefits benefits timely timely and and inin aa manner manner consistent consistent withwith the the public public plan; plan; failure to 33. failure to maintain maintain adequate adequate bond bond coverage; coverage; 4. misuse of 4. misuse of private private plan plan trust trust funds; funds; 55. adverse adverse changes changes to to the the financial financial condition condition or or licensure licensure status status oof the the employer employer or or covered business covered business entity, entity, private private plan plan insurer, insurer, or or surety surety company company responsible responsible for for aa bond; bond; 6. failure 6. failure or or refusal refusal toto respond respond to to requests requests for for information information or or to to submit submit reports, reports, records, records, or other or other information information that that may may be be required required by by the the Department; Department; or or 7. failure 7. failure to to comply comply with with M.G.L. M.G.L. c. c. 1175M, 458 .00,2.00, or or other other state state oror federal federal lawlaw applicable to applicable to the the private private plan. plan. (d) An (d) An employer employer or or covered covered business business entity, entity, or or private private planplan administrator administrator must must notify notify thethe Department in Department in writing writing atat least least 3030 calendar calendar daysdays before before any any proposed proposed changes changes to to the the terms terms or or conditions of conditions of an an approved approved private private plan. plan. (e) An (e) An employer employer or or covered covered business business entity entity that that fails fails to to maintain maintain aa private private plan plan as as approved approved by the by the Department Department or or has has its its approval approval withdrawn withdrawn by by the the Department Department pursuant pursuant 458 458 CMR CMR 2.07(7)(c) may 2.07(7)(c) may be be subject subject toto the the following following penalties: penalties: 11. Assessment Assessment of of aa penalty penalty of of up up toto an an amount amount equal equal toto its its total total annual annual payroll payroll for for employees and employees and covered covered contract contract workers workers each each year year or or fraction fraction thereof thereof that that it it failed failed toto maintain said maintain said plan plan multiplied multiplied by by the the then-current then-current annualannual contribution contribution raterate required required underunder M.G.L. M.G.L. c. c. 1175M, §§ 6(a). This amount 6(a). This amount may may be be subject subject to to penalties penalties under under M.G.L. M.G.L. c. c. 62C 62C and interest and interest from from the the due due date date ofof the the PFML PFML returnreturn to to the the date date the the PFML PFML contributions contributions are are paid at paid at aa rate rate prescribed prescribed by by M.G.L. M.G.L. c. 62C, §§ 32. c. 62C, 32. 2. The employer 2. The employer or or covered covered business business entity entity may may be be required required to to repay repay toto the the Trust Trust Fund Fund the total the total amount amount of of benefits benefits paidpaid toto covered covered individuals individuals who who received received benefits benefits from from thethe Trust Fund. Trust Fund.

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2.07: continued 2.07: continued

(f) The (f) The penalty penalty prescribed prescribed inin .07(7)(e) 458 CMR l shall 2.07(7)(e)1. shall also also apply apply to to an an employer employer oror covered business covered business entity entity that that fails fails to to maintain maintain or or renew renew aa private private plan plan approved approved byby the the Department for Department for the the future future payment payment of of leave leave benefits scheduled to benefits scheduled to begin begin on on January January 11, 202 2021,1 pursuant to pursuant to .08(8). .08(8). AnAn employer employer or or covered covered business business entity entity who who fails fails to to maintain maintain renew aa private or renew or private plan plan exemption exemption approved approved prior prior to to January January 11, 202 20211 shall shall be responsible for be responsible for retroactive contributions retroactive contributions to to the the Trust Trust Fund. Fund.

(8) Private (8) Private Plan Plan Termination Termination or or Non-renewal Non-renewal and and Intersection Intersection of of State State andand Private Private Plans. Plans. (a) Benefits (a) Benefits and and benefit benefit eligibility eligibility under under an an approved approved private private plan plan must must be be maintained maintained for for all covered all covered individuals individuals until until the the effective effective datedate ofof termination termination or or nonrenewal nonrenewal of of the the approved approved private plan. private plan. An An employer employer or or covered covered business business entity entity that that does does not not intend intend to to renew renew its its approved private approved private plan plan atat the the effective effective date date of oftermination termination must must notify covered individuals notify covered individuals and and the Department the Department no no later later than than 30 30 calendar calendar days days prior prior toto the the effective effective date date of of termination. termination. The The effective date effective date of of the the termination termination of of aa private private plan plan shall shall bebe onon the the first first day day of of the the first first quarter quarter immediately following immediately following the the date date ofof the the termination termination or or nonrenewal. nonrenewal. (b) An (b) An employer employer or or covered covered business business entityentity that that does does not not renew renew an an approved approved private private plan plan must continue must continue to to provide provide paid paid leave leave benefits benefits to to covered covered individuals individuals under under thethe same same terms terms andand conditions of conditions of the the private private plan plan for for the the entire entire duration duration of of the the leave leave for for requests requests for for leave leave filed filed with the with the private private plan plan administrator administrator with with aa start start date date commencing commencing prior prior toto the the effective effective date date of termination of termination or or nonrenewal. nonrenewal. In In the the case case of of intermittent intermittent leave, leave, the the private private plan plan shall shall maintain coverage maintain coverage until until the the end end of of the the employee employee or or covered covered contract contract worker's worker's benefit benefit year. year. The Department The Department shall shall continue continue to to provide provide paid paid leave leave benefits benefits to to covered covered individuals individuals for for the the entire leave entire leave duration duration for for leave leave filed filed with with thethe Department Department prior prior to to the the effective effective date date ofof anan employer transferring employer transferring from from the the Trust Trust Fund Fund to to aa private private plan plan exemption. exemption. Employers Employers or or covered business covered business entities entities shall shall continue continue to to provide provide paidpaid leave leave benefits benefits to to covered covered individuals individuals for the for the entire entire leave leave duration duration for for leave leave filed filed under under aa private private planplan prior prior to to the the effective effective datedate of of an employer an employer transferring transferring from from aa private private planplan exemption exemption to to the the Trust Trust Fund. Employers or Fund. Employers or covered business covered business entities entities thatthat renew renew aa private private plan plan with with aa newnew or or different different insurance insurance carrier carrier shall ensure shall ensure that that there there areare no no gaps gaps in in coverage coverage for for covered covered individuals. individuals. (c) Those (c) Those covered covered individuals individuals of ofanan employer employer or or covered covered business business entityentity that that does does notnot renew renew an approved an approved private private plan plan shall shall be be eligible eligible to to submit submit an an application application for for benefits benefits to to the the Department pursuant Department pursuant to to 458 .08 2.08 on on the the first first day day of of the the first first quarter quarter immediately immediately following the following the date date of of termination termination or or nonrenewal, nonrenewal, subjectsubject to to the the conditions conditions of of 45 458 CMRCMR 2.07(8)(b). The 2.07(8)(b). The employer employer or or covered covered business business entity entity that that terminates terminates or or nonrenews nonrenews its its private private plan exemption plan exemption will will be be required required to to report report prior prior wageswages and and qualified qualified earnings earnings to to Massachusetts Department Massachusetts Department of of Revenue Revenue pursuant pursuant to to 458 .04 2.04 andand 2.05 2.05 for for the the four four quarters immediately quarters immediately preceding preceding the the termination termination date date ofof the the exemption. exemption. (d) An (d) An employer employer or or covered covered business business entityentity that that dissolves dissolves or or undergoes undergoes an an acquisition acquisition or or merger after merger after thethe approval approval of of an an exemption exemption and and before before the the renewal renewal period, shall notify period, shall notify the the Department within Department within 60 60 calendar calendar days days of of the the dissolution dissolution or or acquisition acquisition or or merger, merger, or or as as soon soon as reasonably as reasonably practicable, practicable, with with sufficient sufficient documentation documentation to to allow allow the the DepDepartment to to determine, among determine, among other other things, things, thethe effective effective datedate ofof the the termination termination of of the the private private plan, plan, the the listing of listing of employees employees and and covered covered contract contract workers workers that that areare affected, affected, and and the the name name and and Federal Employer Federal Employer Identification Identification Number Number of of any any acquiring acquiring or or affiliate affiliate organization organization that that will will be assuming be assuming the the employees employees and and covered covered contract contract workers workers affected affected by by thethe dissolution, dissolution, acquisition or acquisition or merger. merger. (e) For (e) For purposes purposes of of private private planplan exemptions, exemptions, the the following following shall shall apply apply to to applications applications for for benefits submitted benefits submitted by by former former employees. employees. 11. Covered Covered individuals individuals that that have have been been separated separated from from an an employer employer or or covered covered business business entity for entity for less less than than 26 26 weeks weeks shallshall file file applications applications for for benefits benefits as as follows: follows: a. If a. If the the covered covered individual individual remains remains unemployed unemployed on on the the date date that that anan application application for for benefits is benefits is filed, filed, thethe covered covered individual individual shallshall submit submit an an application application for for benefits benefits with with their former their former employer employer or or covered covered business business entity. entity. b. b. If If the the covered covered individual individual has has become become employed employed by by aa different different employer employer or or contracted with contracted with aa covered covered business business entity entity at at the the time time thatthat that that anan application application for for benefits is benefits is filed, filed, thethe covered covered individual individual shallshall submit submit an an application application for for benefits benefits with with their current their current employer employer or or covered covered business business entity. entity.

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2.07: continued 2.07: continued

If the If the new new employer employer oror covered covered business business entity entity has has aa private private plan plan exemption, exemption, the the covered individual covered individual shall shall submit submit the the application application for for benefits benefits to to the the private private plan plan in in accordance with accordance with the the requirements requirements established established byby their their employer employer oror covered covered business business entity. Employers entity. Employers or or covered covered business business entities entities that that have have been been approved for aa private approved for private plan exemption plan exemption maymay require require aa covered covered individual individual toto provide provide verification verification of of wages wages earned with earned with anan employer employer or or covered covered business business entity entity inin the the Commonwealth Commonwealth for for purposes of purposes of determining determining whether whether thatthat covered covered individual individual meets meets thethe financial financial eligibility requirements eligibility requirements of of M.G.L. M.G.L. c.c. 1175M, §§ 11. cc.. If If an an individual individual submitting submitting anan application application forfor benefits benefits identifies identifies themselves themselves as as aa former employee, former employee, the the Department Department or,or, if ifapplicable, applicable, the the employer employer oror covered covered business business entity that entity that has has been been approved approved for for an an exemption, exemption, may may inquire inquire as as to to whether whether thethe individual is individual is currently currently employed. employed.

2.08: Application for 2.08: Application for Benefits Benefits Filed Filed with with the the Department Department 1) 1 Process Process for for Filing. Filing. A covered individual A covered individual must must file file an an application application for for benefits benefits for for family family leave or leave or medical medical leave leave benefits benefits using using forms forms prescribed prescribed by by the the Department. The individual Department. The individual may may file an file an application application for for benefits benefits with with the the Department Department no no more more than than 60 60 calendar calendar days days before before the the anticipated start anticipated start date date of of family family or or medical medical leave. leave.

(2) Required (2) Required Notice. Notice. (a) An (a) An employee employee or or covered covered contract contract worker worker shall shall give give not not less less than than 3030 calendar calendar days days notice notice to their to their employer employer or or covered covered business business entityentity ofof the the anticipated anticipated start start date date of of family family leave leave oror medical leave medical leave pursuant pursuant to to M.G.L. M.G.L. c. c. 1175M, §§ 2. Notice shall 2. Notice shall be be provided provided as as soon soon asas practicable if practicable if aa delay delay is is beyond beyond the the employee employee or or covered covered contract contract worker's worker's control. control. (b) The (b) The Department Department will will require require an an employee employee or or covered covered contract contract workerworker to to comply comply with with the employer's the employer's or or covered covered business entity's usual business entity's usual andand customary customary notice notice andand procedural procedural requirements for requirements for leave, leave, absent absent unusual unusual circumstances. circumstances. An An employee employee or or covered covered contract contract worker also worker also may may be be required required by by anan employer's employer's or or covered covered business business entity's entity's policy policy to to contact contact aa specific specific individual individual to to report report this this information. information. (c) Notice (c) Notice of of an an employee's employee's or or covered covered contract contract worker's worker's needneed for for family family and and medical medical leaveleave must be must be made made to to the the employer employer or or covered covered business business entity entity prior prior to to an an application application to to the the Department for Department for family family or or medical medical leave leave benefits. benefits. The The Department Department will will not not accept accept an an application for application for benefits, unless notice benefits, unless notice to to the the employer employer or or covered covered business business entity entity was was made made in accordance in accordance with with 458 .08(2)(a). 2.08(2)(a). (d) Where (d) Where an an employee employee or or covered covered contract contract worker worker does does notnot comply comply with with the the notice notice requirement in requirement in 458 458 CMR CMR 2.08(2)(a) 2.08(2)(a) or or follow follow thethe employer's employer's or or covered covered business business entity's entity's usual notice usual notice andand procedural procedural requirements, requirements, and and nono unusual unusual circumstances circumstances justify the failure justify the failure to comply, to comply, protected protected leave leave and and application application for for benefits benefits maymay be be delayed delayed or or denied denied by by the the Department Department (e) When (e) When planning planning medicalmedical treatment, treatment, the the employee employee or or covered covered contract contract worker worker must must consult with consult with thethe employer employer or or covered covered business business entity entity inin advance advance of of anan application application to to the the Department and Department and make make aa reasonable reasonable effort effort toto schedule schedule the the treatment treatment so so as as not not to to disrupt disrupt unduly the unduly the employer's employer's or or covered covered business business entity's entity's operations, operations, subject subject to to the the approval approval of of the the health care health care provider. provider. (f) If, (f) If, for for reasons reasons beyond beyond the the covered covered individual's individual's reasonable reasonable control, control, thethe individual individual cannot cannot provide the provide the Department Department with with atat least least 3030 calendar calendar days days notice notice then then the the individual individual shall shall provide provide notice as notice as soon soon asas is is practicable. practicable. The The Department Department shall notify aa covered shall notify covered individual's individual's employer employer or covered or covered business business entity, entity, ififapplicable, applicable, not not more more than than five five business business days days after after an an application application for benefits for benefits under under M.G.L. M.G.L. c. c. 1175M is is filed, filed, and and shall shall facilitate facilitate the the disclosure disclosure and and exchange exchange of relevant of relevant information information or or records records regarding regarding the the application application for for benefits. The Department's benefits. The Department's notice to notice to an an employer employer or or covered covered business business entityentity shall shall contain: contain: 11. the the covered covered individual's individual's full full name name and and other other identifying identifying information; information; 2. 2. thethe type type of of leave leave at at issue; issue; 33. the the expected expected duration duration oof the the leave; leave; 4. whether the 4. whether the request request is is for for continuous continuous or or intermittent intermittent leave; leave; 55. aa certification certification as as outlined outlined in in 458 .08(5), 2.08(5), supporting supporting the the need for aa leave need for leave under under M.G.L. M.G.L. c. c. 1175M; and and 6. any 6. any other other information information relevant relevant to to the the application application for for benefits. benefits.

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(3) Consent. (3) Consent. A covered individual A covered individual filing filing an an application application for for benefits benefits must must provide provide thethe Department with Department with consent consent toto share share information information regarding regarding the the application application for for benefits benefits and and other other information necessary information necessary for for the the Department Department toto process process the the individual's individual's application application for for benefits, benefits, including consent including consent to to share share information information with with the the individual's individual's employer employer or or covered covered business business entity entity (if any) (if any) and and health health care care provider. Consent shall provider. Consent shall be be acknowledged acknowledged by by the the individual in aa form individual in form provided by provided by the the Department. Department. An An application application for for benefits benefits will will not not be be processed, unless aa consent processed, unless consent is provided is provided by by the the covered covered individual. individual.

Application for (4) Application (4) for Benefits. Benefits. When When filed, filed, anan application application for for benefits benefits will will not not be be processed processed byby the Department, the Department, unless unless the the application application for for benefits benefits includes includes all all information information necessary necessary for for the the Department's review Department's review and and processing processing including, including, but but not not limited limited to:to: (a) Identifying (a) Identifying information, information, such such as as Social Social Security Security Number Number or or Individual Individual Taxpayer Taxpayer Identification Number; Identification Number; (b) The (b) The nature nature of of the the leave, leave, whether whether family family leave leave or or medical medical leave; leave; (c) The (c) The starting starting date date and and expected expected duration duration of of the the leave; leave; d) Whether Whether the the leave leave willwill be be continuous continuous or or intermittent; intermittent; (e) For (e) For employees employees and and covered covered contract contract workers: workers: 11. Employer Employer or or covered covered business business entityentity name name and and identification identification number number (which (which is is included on included on the the notice notice thethe employer employer or or covered covered business business entity entity is is required required to to provide provide toto employees and employees and covered covered contract contract workers); workers); 2. Evidence that 2. Evidence that notice notice waswas provided provided to to the the employer employer or or covered covered business business entity entity in in advance of advance of the the application application for for benefits, including the benefits, including the date date notice notice was was provided provided toto the the employer or employer or covered covered business business entity; entity; and and 33. AnyAny denied, denied, granted, granted, or or pending pending requests requests for for leave for aa qualifying leave for qualifying reason reason from from the the employer during employer during the the last last 112 months; months; (f) An (f) An attestation attestation regarding regarding the the family family relationship relationship in in the the form form specified specified byby the the Department Department ifthe if the leave leave involves involves anan application application for for benefits benefits for for family family leave leave benefits benefits or or an an application application for for benefits relating benefits relating to to active active dutyduty military military service service by by aa family family member; member; (g) Completed (g) Completed certification certification as as required required in in 458 .08(5); 2.08(5); Additional specific Additional specific information information requested requested by by the the Department Department where where reasonably reasonably necessary necessary to review to review and and process process an an individual's individual's application application for for benefits benefits including, including, but but not not limited limited to, to, whether the whether the covered covered individual individual willwill bebe receiving receiving any any other other wage wage replacement replacement as as set set forth forth in in 458 458 CMR CMR 2 . 12.12(6); (h) If (h) If an an application application forfor benefits benefits is is filed filed with with thethe Department Department or or is is filed filed but but does does not not include include all required all required information information and and more more than than 90 90 calendar calendar days days have have passed passed since since the the start start of of the the individual's period individual's period ofof leave, leave, thethe covered covered individual individual may may receive receive reduced reduced benefits benefits in in the the discretion of discretion of the the Director. Director. 5) 5) Certifications. Certifications. All All applications applications for for benefits benefits shall shall be be supported supported by by aa certification certification evidencing evidencing that the that the leave leave is is for qualifying reason. for aa qualifying reason. (a) Medical (a) Medical Leave Leave Benefits. Benefits. The The certification certification mustmust bebe from from aa health health care care provider provider and and must must include: include: 11. aa statement statement that that the the covered covered individual individual has has aa serious serious health health condition; condition; 22. the the date date onon which which thethe serious serious health health condition condition commenced; commenced; 33. the the probable probable duration duration of of the the serious serious health health condition; condition; 4. other information 4. other information required required byby the the Department, Department, including including aa certification certification by by the the health health care provider care provider that that the the individual individual is is incapacitated incapacitated from from work work duedue to to the the serious serious health health condition; and condition; and 55. where where the the application application for for benefits benefits is is for for leave leave onon an an intermittent intermittent or or reduced reduced leave leave schedule, information schedule, information regarding regarding the the need need for for intermittent intermittent leave, leave, including including aa statement statement that that such leave such leave oror schedule schedule is is medically medically necessary. necessary. In the In the event event that that aa serious serious health health condition condition of ofthe the covered covered individual individual prevents the covered prevents the covered individual from individual from providing providing the the required required certification certification within within 90 90 calendar calendar days days of of the the start start of of the leave, the leave, thethe Department Department will will allow allow for for aa good good cause cause exemption exemption to to permit permit delayed delayed benefits benefits under 458 under CMR 2.08(4)(i). .08(4)(i). (b) Family (b) Family Leave Leave Benefits Benefits to to Care Care for for aa Family Family Member Member withwith aa Serious Serious Health Health Condition. Condition. The certification The certification must must contain contain aa statement statement in in aa form form prescribed prescribed byby the the Department Department confirming confirming the relationship the relationship between between the the covered covered individual individual and and the the family family member member and and must must include include the the following from the covered individual or the family member's health care provider: following from the covered individual or the family member's health care provider: 11. the the name name and and address address of of the the family family member member and and the the relationship relationship toto the the covered covered individual; individual;

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2.08: continued 2.08: continued

22. aa statement statement thatthat the the family family member member has has aa serious serious health health condition; condition; 33. thethe date date onon which which the the family family member's member's serious serious health health condition condition commenced; commenced; 4. 4. the the probable probable duration duration of of the the family family member's member's serious serious healthhealth condition; condition; 55. aa statement statement that that thethe covered covered individual individual is is needed needed to to care care forfor the the family family member; member; 6. 6. an an estimate estimate regarding regarding the the frequency frequency and and thethe anticipated anticipated durationduration oof timetime that that the the covered individual covered individual is is needed needed to to care care forfor the the family family member; member; and and 7. information 7. information from from the the covered covered individual individual that that proves proves to to the the satisfaction satisfaction of of the the Department the Department the identity identity of of the the family family member. member. (c) Family (c) Family LeaveLeave Benefits Benefits for for the the Birth Birth of of aa Child. Child. The The certification certification must must include: include: 11. thethe child's child's birth birth certificate; certificate; 22. aa statement statement from from the the child's child's health health carecare provider provider statingstating the the child's child's birth birth date; date; or or 3. aa statement 3. statement from from the the health health carecare provider provider of of the the person person who who gave gave birth birth stating stating the the child's birth child's birth date. date. The leave The leave period period for for which which benefits benefits are are requested requested may may onlyonly include include dates dates within within 12 12 months of months of the the child's child's birthbirth date. date. In In the the case case oof multiple multiple births,births, no no more more than than 1212 weeks weeks of leave of leave benefits benefits totaltotal areare available available in in aa benefit benefit year year forfor this this purpose. purpose. (d) Family (d) Family Leave Leave forfor thethe Placement Placement of of Child Child for for Adoption Adoption or or Foster Foster Care. Care. TheThe certificate certificate must be must be from from thethe child's child's health health carecare provider provider or or from from an an adoption adoption or or foster foster care care agency agency involved in involved in the the placement placement or or the the Massachusetts Massachusetts Department Department of of Children Children and and Families Families and and must confirm must confirm both the placement both the placement and and thethe date date of of the the placement. placement. The The leave leave period period for for which which benefits are benefits are requested requested must must be be for for dates dates within within 12 12 months months of of the the placement placement date. date. To the To the extent extent that that the the status status of of aa covered covered individual individual as as anan adoptive adoptive or or foster foster parent parent changes while changes while an an application application for for benefits benefits is is pending pending or or while while the the covered covered individual individual is is receiving benefits, receiving benefits, thethe covered covered individual individual shall shall provide provide written written noticenotice toto the the Department Department within five within five business business days days of of such such change change in in status. status. The The Massachusetts Massachusetts Department Department of of Children and Children and Families Families may may confirm confirm in in writing writing the the status status of of the the covered covered individual individual as as an an adoptive or adoptive or foster foster parent parent while while an an application application for for benefits benefits is is pending pending or while aa covered or while covered individual is individual is receiving receiving benefits. benefits. (e) Family (e) Family Leave Leave Benefits Benefits for for aa qualifying qualifying exigencyexigency arising arising out out ofof the the fact fact that that aa family family member is member is on on active active military military duty duty oror has has been been notified notified of of anan impending impending call call or or order order toto active active duty in duty in the the Armed Armed Forces. Forces. The The certification certification must must include: include: 11. aa copy copy of of the the family family member's member's active active duty duty orders; orders; or or 2. aa letter 2. letter ofof Impending Impending ActivationActivation from from the the family family member's member's Commanding Commanding Officer;Officer; oror 33. otherother documentation documentation reasonably reasonably acceptable acceptable to to the the Department Department in in circumstances circumstances where, for where, for good good cause cause shown, shown, the the applicant applicant is is unable unable to to produce produce the the documentation documentation specified in specified in 458 .08(5)(e) 2.08(5)(e)1. l or or 2.; 2.; 4. 4. aa statement statement of of the the family family relationship relationship between between the the service service member member and and the the family family member requesting member requesting benefits benefits in in aa form form prescribed prescribed by by the the Department; Department; 55. information information from from the the covered covered individual individual that that proves proves to to the the satisfaction satisfaction of of the the Department the Department the identity identity of of the the family family member; member; 6. 6. the the name name andand address address oof the the family family member member being being caredcared for;for; 7. the 7. the dates dates oror period period of of time time forfor which which leave leave is is requested; requested; and and 88. thethe underlying underlying reason reason for for the the exigency exigency leave. leave. (f) Family (f) Family LeaveLeave Benefits Benefits to to Care Care forfor aa Family Family MemberMember Who Who Is Is aa Covered Covered Service Service Member. Member. The certification The certification from from the the covered covered individual individual or or the the service service member's member's health health care care provider provider must include: must include: 11. the the date date onon which which the the covered covered service service member's member's serious serious health health condition condition commenced; commenced; 2. 2. the the probable probable duration duration of of the the condition; condition; 33. aa statement statement thatthat the the covered covered individual individual is is needed needed to to care care forfor the the family family member; member; 4. 4. an an estimate estimate of of the the amount amount of of time time the the covered covered individual individual will will bebe needed needed to to care care for for the family the family member; member; 55. anan attestation attestation by by the the service service member's member's health health care care provider provider and and the the covered covered individual individual that the that the health health condition condition is is connected connected to to thethe service service member's member's militarymilitary service; service; statement of 6. aa statement 6. of the the family family relationship relationship between between the the service service member member and and the the family family member requesting member requesting benefits benefits in in aa form form prescribed prescribed by by the the Department; Department; and and 7. information 7. information from from the the covered covered individual individual that that proves proves to to the the satisfaction satisfaction of of the the Department the Department the identity identity of of the the family family member; member; 88. TheThe name name andand address address oof the the family family member member being being caredcared for; for; and and other information 9. other 9. information or or documentation documentation that that may may be be required required by by the the Department. Department.

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(g) Where (g) Where it it determines determines that that aa certification certification lacks lacks required required information, information, or or is is not not accurate accurate or or authentic, or authentic, or is is otherwise otherwise insufficient, insufficient, the the Department Department may may contact contact the the health health care care provider provider and require and require that that it it verify, verify, supplement, supplement, or or otherwise otherwise amend amend the the information information in in the the certification. certification.

Information from (6) Information (6) from Employer Employer or or Covered Covered Business Business Entity. Following notice Entity. Following notice given given under under 458 CMR .08(2), 2.08(2), thethe Department Department will will request request from from thethe employer employer or or covered covered business business entity entity information supporting information supporting whether whether thethe employee's employee's or or covered covered contract contract worker's worker's request request forfor medical medical or family or family leave leave has has been been approved, approved, denied denied oror isis pending pending uponupon thethe receipt receipt of of additional additional information. information. Upon request, Upon request, anan employer employer or or covered covered business business entity entity shall shall within within ten ten business business days days provide provide to the to the Department Department information information or or records records relevant relevant to to an an application application forfor benefits benefits made made byby aa covered individual, covered individual, including including withwith respect respect toto the the covered covered individual individual thethe following: following: (a) Wage (a) Wage and/or and/or earnings earnings information information for for the the past past 1212 months; months; (b) A (b) A description description of of the the employee's employee's or or covered covered contract contract worker's worker's position; position; Whether the (c) Whether (c) the employee employee or or covered covered contract contract worker worker currently currently works works aa full- full- or or part-time part-time schedule; schedule; (d) Weekly (d) Weekly hours hours worked; worked; (e) Prior (e) Prior requests/approvals requests/approvals for for aa qualifying qualifying reason; reason; f) Amount Amount of of paid paid leave leave already already taken taken for for aa qualifying qualifying reason reason during during thethe current current benefit benefit year; year; (g) A (g) description of A description of the the employer's employer's or or covered covered business business entity's entity's own own paid paid leave leave policies policies and and whether the whether the employee employee or or covered covered contract contract worker worker has has received received paid paid oror unpaid unpaid leave leave during during the last the last 112 months months under under any any plan plan oror practice practice of of the the employer employer or or covered covered business business entity, entity, and and whether the whether the employee employee or or covered covered contract contract worker worker willwill receive receive any any paid paid leave leave benefits benefits from from the employer the employer or or covered covered business business entity entity during during the the requested requested leave leave period period atat issue; issue; (h) Whether (h) Whether the the covered covered individual individual hashas applied applied forfor concurrent concurrent FMLAFMLA or or other other leave leave and and whether the whether the employer employer or or covered covered business business entity entity has has approved approved the the application; application; (i) Whether (i) Whether thethe covered covered individual individual will will be be receiving receiving anyany other other wage wage replacement replacement benefits benefits as set as set forth forth in in 458 . 1 and 2.12(6); and (i) Any (j) Any other other relevant relevant information information or or records records related related toto the the claim, claim, including including anyany evidence evidence of aa potentially of potentially fraudulent fraudulent claim. claim.

(7) Processing (7) Processing ofof Applications. Applications. The The time time standards standards for for the the Department's Department's processing processing of of aa complete application complete application for for paid paid leave leave benefits benefits are are as as follows: follows: (a) Within (a) Within 14 14 calendar calendar daysdays of of receiving receiving an an application application under under M.G.L. M.G.L. c. c. 1175M, thethe Department shall Department shall notify notify applicants applicants forfor benefits benefits ofof its its approval approval oror denial denial of of applications applications for for paid leave paid leave benefits, or of benefits, or of the the need need for for additional additional information information fromfrom the the covered covered individual individual oror the employer the employer or or covered covered business business entity. entity. A request from A request from the the Department Department for for additional additional information necessary information necessary to to process process anan application application forfor paid paid leave leave benefits benefits shall shall satisfy satisfy the the Department's obligation Department's obligation to to timely timely notify applicants under notify applicants under M.G.L. M.G.L. c.c. 1175M, §§ 8(b if such 8(b), if such request is request is made made within within 114 calendar calendar days days ofofits its receipt receipt of ofthe the complete complete application application for for benefits. benefits. (b) The (b) The Department Department shall shall commence commence payment payment of of leave leave benefits benefits not not less less than than 1414 calendar calendar days after days approving aa complete after approving complete application, application, unless unless that that determination determination occurs occurs more more than than 1414 calendar days calendar days before before the the onset onset oof eligibility, eligibility, inin which which case case the the Department Department shall shall commence commence payment of payment of leave leave benefits benefits asas soon soon asas eligibility eligibility begins. begins.

(8) Leave (8) Leave Allotments. Allotments. (a) Beginning (a) Beginning January January 11, 202 2021,1 covered covered individuals individuals shall shall be be eligible eligible for for up up toto 26 26 total total weeks, in weeks, in the the aggregate, aggregate, of offamily family and and medical medical leave leave under under M.G.L. M.G.L. c. c. 1175M inin aa benefit benefit year. year. (b) Beginning (b) Beginning January January 11, 202 2021,1 covered covered individuals individuals shall shall be be eligible eligible for for up up to to 12 12 weeks weeks ofof family leave family leave in benefit year: in aa benefit year: 11. for for the the birth, adoption, or birth, adoption, or foster foster care care placement placement of of aa child; child; or or 2. due to 2. due to aa qualifying qualifying exigency exigency arising arising out out of of the the fact fact that that aa family family member member is is on on active active duty or duty or has has been been notified notified of of an an impending impending callcall to to active active duty duty in in the the Armed Armed Forces. Forces. Beginning January (c) Beginning (c) January 11, 202 1 covered 2021, covered individuals individuals shall shall be be eligible eligible for for up up to to 26 26 weeks weeks ofof family leave family leave inin aa benefit benefit year year inin order order toto care for aa family care for family member member who who is is aa covered covered servicemember. servicemember. (d) Beginning (d) Beginning January January 11, 202 2021,1 covered covered individuals individuals shall shall be be eligible eligible for for up up to to 20 20 weeks weeks ofof medical leave medical leave inin aa benefit benefit year year if if they they have have aa serious serious health health condition condition that that incapacitates incapacitates them them from work. from work.

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2.08: continued 2.08: continued

(e) Beginning (e) Beginning July July 11, 202 1 covered 2021, covered individuals individuals shall shall be be eligible eligible for for up up to to 112 weeks weeks ofof family leave family leave to to care care for for aa family family member member with with aa serious serious health health condition. condition. (f) Leave (f) Leave allotments allotments are are based based on on the the number number or or hours hours or or days days aa covered covered individual individual works. works. When aa covered When covered individual individual works works aa part-time part-time schedule schedule oror variable variable hours, hours, the the amount amount of ofleave that aa covered that covered individual individual uses uses is is determined determined on on aa pro rata or pro rata or proportional proportional basis. basis. IfIf aa covered covered individual's schedule individual's schedule varies varies from from week week to to week week toto such such an an extent extent that that an an employer employer or or covered covered business entity business entity is is unable unable toto determine determine with with certainty certainty how how many many hours hours the the covered covered individual individual would otherwise would otherwise have have worked worked (but(but for for taking taking leave leave as as authorized authorized by by M.G.L. M.G.L. c. c. 1175M), aa weekly average weekly average of ofthe the hours hours scheduled scheduled over over the the 112 months months prior prior to to the the beginning beginning ofofthethe leave leave period will period will be be used used for for calculating calculating thethe leave leave entitlement. entitlement.

(9) Consistent (9) Consistent with with the the notice notice requirements requirements set set forth forth inin .08(2)(b), 458 CMR the Department 2.08(2)(b), the Department may allow may allow an an employer, employer, covered covered business business entity, entity, or or its its designee designee to to submit submit an an application application for for benefits on benefits on behalf behalf of of aa covered covered individual. individual. In In order order to to do do so, so, employers, employers, covered covered business business entities, or entities, or leave leave administrators administrators must must be be approved approved by by the the Department Department and and agree agree to to adhere adhere to to all all of the of the requirements requirements prescribed prescribed inin 458 458 CMR CMR 2.08, 2.08, including including the the timelines timelines set set forth forth in in 458 CMR 458 CMR 2.08(7). 2.08(7).

(1 Leave for (10) Leave for Substance Substance Use Use Disorder. Disorder. (a) A (a) Substance Use A Substance Use Disorder Disorder maymay bebe aa serious serious health health condition. condition. Family Family or or medical medical leave leave may only may only be be taken taken for for treatment treatment for for substance substance useuse disorder by aa health disorder by health care care provider, provider, byby aa provider of provider ofhealth health care care services services on on referral referral by by aa health health care care provider provider oror by by aa program program licensed licensed or approved or approved byby the the Massachusetts Massachusetts Department Department of of Public Public Health. Health. AnAn absence absence because because of of the the employee's use employee's use ofof the the substance, substance, rather rather than than for for treatment, does not treatment, does not qualify qualify for for leave. leave. (b) Treatment (b) Treatment for for substance substance use use disorder disorder does does not not prevent prevent an an employer employer fromfrom taking taking employment action employment action against against an an employee. employee. The The employer employer maymay not not take take action action against against the the employee because employee because the the employee employee has has exercised exercised his his or or her her right right to to take take leave leave for for treatment. treatment. However, if However, if the the employer employer hashas an an established established policy, applied in policy, applied in nondiscriminatory nondiscriminatory manner manner that has that has been been communicated communicated to to all all employees, employees, thatthat provides provides under under certain certain circumstances circumstances an an employee may employee may be be terminated terminated forfor substance substance use, use, pursuant pursuant toto that that policy, policy, the the employee employee may may be terminated be terminated whether whether or or not not they they are are presently presently taking taking leave. An employee leave. An employee may may also also take take leave to leave to care for aa covered care for covered family family member member whowho is is receiving receiving treatment treatment forfor substance substance useuse disorder. The disorder. The employer employer may may not not take take action action against against an an employee employee who who is is providing providing carecare for for aa covered covered family family member member receiving receiving treatment treatment for for substance substance useuse disorder disorder because because the the employee has employee has exercised exercised hishis or or her her right right to to take take leave. leave.

2.09: Determinations by 2.09: Determinations by the the Department Department 1) 1 Except Except as as limited limited by by 458 458 CMR CMR 2 . the Department 1 the 2.12, Department may approve aa paid may approve paid leave leave benefit benefit for for aa qualifying qualifying reason reason for for aa period period of offamily family or or medical medical leave leave stated stated in in 458 458 CMR CMR 2.08(8)(a) 2.08(8)(a) through through (f). (f).

(2) Application (2) Application for for Benefits Benefits Determination. Determination. The The Department Department shall shall consider consider the the following following when when determination on making aa determination making on an an application application for for benefits: benefits: (a) confirmation (a) confirmation thatthat the the covered covered individual individual provided provided the the required required notice notice pursuant pursuant toto .08(2)(a); .08(2)(a); the financial (b) the (b) financial eligibility eligibility test test described described inin 458 458 CMR CMR 2.02; 2.02; (c) certification, (c) certification, as as required required by by M.G.L. M.G.L. c. c. 1175M, §§ 5,5, including including aa certification certification by by aa health health care provider, care supporting the provider, supporting the necessity necessity for for leave; leave; (d) whether (d) whether the the covered covered individual's individual's request request forfor family family or or medical medical leave leave associated associated with with the the application for application for benefits benefits was was approved approved oror denied denied by by the the employer employer or or covered covered business business entity entity and the and the reason(s) reason(s) forfor the the approval approval oror denial; denial; (e) whether (e) whether thethe covered covered individual individual has has actually actually taken taken or or plans plans to to take take the the leave leave associated associated with the with the application application forfor benefits; and benefits; and (f) any (f) any other other relevant relevant information information deemed deemed necessary necessary byby the the Director. Director.

(3) The (3) The Department Department shall shall provide provide contemporaneous contemporaneous notice notice to to the the covered covered individual individual and and to to the the employer or employer or covered covered business business entity, entity, if if any. any.

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2.09: continued 2.09: continued

The approval (4) The (4) approval for for payment payment ofof benefits notice shall benefits notice shall include: include: The reason (a) The (a) reason for for the the approved approved leave leave benefits; benefits; The duration (b) The (b) duration of of the the approved approved leave leave benefits; benefits; For intermittent (c) For (c) intermittent leaves, leaves, the the frequency frequency and and duration duration of of the the leave leave benefits; benefits; d) The The expiration expiration of of the the approved approved leave leave benefits; and benefits; and The weekly (e) The (e) weekly benefit benefit amount. amount.

(5) A (5) A denial denial of of payment payment ofof benefits benefits notice notice shall shall include: include: The reason (a) The (a) reason for for the the denial denial of of leave leave benefits; and benefits; and (b) A (b) A description description of of the the individual's individual's appeal appeal rights rights under under . 458 CMR 14. 2.14.

(6) Where (6) Where the the Department Department finds that aa covered finds that covered individual individual has has failed failed to to provide provide the the Department Department with notice with of aa relevant notice of relevant change change inin circumstances circumstances whichwhich would would have have reduced reduced the the amount amount of of benefits paid, benefits the covered paid, the covered individual individual shall shall be responsible to be responsible to reimburse reimburse thethe Department Department the the amount overpaid amount overpaid within within 30 30 calendar calendar days days of of aa request request made made by by the the Department. Department.

2. 1 2.10: Application for Application for Benefits Benefits Verification, Verification, Amendment Amendment or or Extension Extension of of Leave Leave Period Period and and Paid Paid Leave Leave Benefits Benefits

1 1) Application for Application for Benefits Benefits Verification. For each Verification. For each request request for for payment payment associated associated with with intermittent leave, intermittent leave, the the covered covered individual individual must must verify verify with with the the Department Department the the hours hours of of leave leave taken each taken each week week inin order order to to receive receive benefit benefit payments. payments.

(2) Amendment (2) Amendment of of Benefits. Following an Benefits. Following an approval approval of of an an application application for for benefits, if there benefits, if there is is aa change change in in relevant relevant circumstances circumstances thatthat would would justify an extension, justify an extension, reduction, reduction, oror other other modification of modification of the the period period of of leave leave or or the the amount amount of of benefits, the covered benefits, the covered individual individual and and the the employer or employer or covered covered business business entity, entity, if if any, any, shall shall have have an an affirmative affirmative obligation obligation to to notify the notify the Department within Department within seven seven calendar calendar days days ofof said said change change using using the the forms forms prescribed prescribed byby the the Department. Department.

(3) The (3) The Department Department shall shall provide provide contemporaneous contemporaneous notice notice to to the the individual individual and and to to the the employer employer of any of any report report of of aa change change inin relevant relevant circumstance circumstance including, including, but but not not limited limited to, the date to, the date on on which the which the change change occurred. occurred.

(4) Extension (4) Extension of of Benefits. Benefits. If If aa covered covered individual individual seeks seeks anan extension extension of of benefits, benefits, thethe covered covered individual must individual must file file an an application application to to request request an an extension extension using using forms forms prescribed prescribed by by the the Department. Department. (a) A (a) request for A request for an an extension extension must must bebe filed filed 14 14 calendar calendar days days prior prior to to the the expiration expiration of of the the original approved original approved leave; leave; provided, however, that provided, however, that the the Director Director may allow aa late may allow late filed filed request request for extension for extension forfor good good cause cause shown. shown. (b) A (b) request for A request for anan extension extension must must include include all all information information required required by by the the Department, Department, including the including the following: following: 11. the the reason reason forfor the the extension; extension; 2. 2. thethe requested requested duration duration of of the the extended extended leave; leave; 33. the the date date on on which which the the covered covered individual individual provided provided notice notice for for the the request request forfor extension extension to the to the employer employer (if (if applicable); applicable); and and 4. 4. aa newly newly completed completed or or updated updated health health care care certification certification for for individual individual or or family family leave leave that otherwise that otherwise satisfies satisfies thethe requirements requirements of of .08(5). .08(5). (c) The (c) The Department Department shall shall notify notify anan employer employer or or covered covered business business entity of aa request entity of request for for an an extension not extension not more more thanthan five five business business days days following following its its receipt receipt of of aa completed completed request request form. form. The Department The Department shallshall provide provide to to the the employer employer or or covered covered business business entity: entity: 11. the the requested requested duration duration for for the the extension; extension; 22. whether whether thethe newly newly requested requested leave leave isis continuous continuous oor intermittent; intermittent; 33. any any additional additional certification health care from aa health certification from care provider; and provider; and 4. 4. any any other other information information or or record record thethe Department Department deemsdeems relevant relevant toto verifying verifying andand otherwise processing otherwise processing the the application application forfor benefits. benefits. (d) The (d) The covered covered business business entityentity or or employer employer shall, shall, within within ten ten business business daysdays from from the the date date of the of the notice, notice, provide provide to to the the Department Department all all relevant relevant information information or or records records requested requested by by the the Department, which Department, which may may include include thethe following: following:

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2. 1 2.10: continued continued

11. Whether Whether the the covered covered individual individual will will receive receive anyany paid paid leave leave benefits benefits from from thethe employer or employer or covered covered business business entity entity during during the the requested requested extended extended leave leave period period at at issue; issue; 2. Whether the 2. Whether the employer employer or or covered covered business business entity entity has has approved approved or or intends intends to to approve approve the request the request for for extension extension under under thethe Family Family and and Medical Medical Leave Leave ActAct of of 11993 (29(29 U.S.C. U.S.C. 260 1 or 2601), or any any other other policy policy ofof the the employer employer or or covered covered business business entity entity allowing allowing for for paid paid or unpaid or unpaid leave; leave; and and 33. Any Any other other relevant relevant information information or or records records related related toto the the request request forfor extension extension including, but including, but not not limited limited to, to, evidence evidence of of aa fraudulent fraudulent application application forfor benefits. benefits. (e) The (e) The initial initial seven-calendar seven-calendar day day waiting waiting period period forfor benefits, referenced in benefits, referenced in 458 458 CMRCMR 2. 1 shall not 2.12(7), shall not apply apply toto an an approved approved extension extension of of benefits. benefits. (f) Any extension (f) Any extension of of an an application application for for benefits benefits shall shall be be limited limited toto any any period period ofof paid paid family family or medical or medical leave leave the the employee employee remains remains eligible eligible for for in in the the benefit benefit year year pursuant pursuant to to 458 458 CMRCMR 2. 1 2.10. (g) Applications (g) Applications forfor requests requests forfor extensions extensions shall shall be be deemed deemed complete complete at at the the time time the the information required information required under under . 1 458 CMR 2.10(4)(b) has has been been received received byby the the Department Department or or the the expiration of expiration of ten ten business business daysdays after after thethe Department Department requests requests thethe information information under under 458 . 1 from the 2.10(4)(c) from the employer employer or or covered covered business business entity, entity, whichever whichever is is sooner, sooner, and and is subject is subject to to the the application application for for benefits benefits approval approval process process in in 458 458 CMR CMR 2.09. 2.09. (h) The (h) The Department Department shall shall provide provide contemporaneous contemporaneous notice notice to to the the covered covered individual individual and and to to the employer the employer or or covered covered business business entity, entity, if if any, any, of of the the Department's Department's approval approval or or denial denial of of the the extension request. extension request. (i) A (i) covered individual A covered individual mustmust apply apply for for and and bebe eligible eligible for for benefits benefits inin any any subsequent subsequent benefit year. benefit year. (i) An (j) An employer employer or or covered covered business entity may business entity seek aa medical may seek medical recertification recertification of of the the employee or employee or covered covered contract contract worker's worker's serious serious health health condition condition following following thethe expiration expiration of of the initial the initial period period of of incapacity incapacity cited cited in in the the healthcare healthcare certification certification oror where where an an intermittent intermittent leave has leave has extended extended for for aa period period of of more more than than six six months months fromfrom the the approval approval by by the the Department, whichever Department, whichever occurs occurs first. first.

2. 1 1 Fitness 2.11: Fitness for for Duty Duty at at Close Close of of Medical Medical Leave Leave Period Period 1) 1 AsAs aa condition condition ofof restoring restoring an an employee employee or or covered covered contract contract worker worker whose whose leave leave was was occasioned by occasioned by their their own own serious serious health health condition, condition, anan employer employer or or covered covered business entity may business entity may have aa uniformly-applied have uniformly-applied policy policy or or practice practice that that requires requires all all similarly-situated similarly-situated employees employees oror covered contract covered contract workers workers who who take take leave leave for for such such conditions conditions to to obtain obtain and and present present certification certification from their from their health health care care provider provider that that the the employee employee or or covered covered contract contract worker worker is is able able to to resume resume work. work.

(2) An (2) An employer employer or or covered covered business business entity entity may may seek seek aa fitness-for-duty fitness-for-duty certification certification only only with with regard to regard to the the particular particular health health condition condition that that caused caused the the employee employee or or covered covered contract contract worker's worker's need for need for leave. leave. The The certification certification from from the the health health care care provider provider must must certify certify that that the the employee employee or or covered contract covered contract worker worker isis able able to to resume resume work. Additionally, an work. Additionally, an employer employer may may require require that that the the certification specifically certification specifically address address the the employee employee or or covered covered contract contract worker's worker's ability ability to to perform perform the essential the essential functions functions ofof their their job. job. In In order order to to require such aa certification, require such certification, an an employer employer or or covered business covered business entity entity must must provide provide anan employee employee or or covered covered contract contract worker worker with with aa list list of of the the essential functions essential functions ofof their their job within ten job within ten business business days days of of the the notice notice to to the the employer employer or or covered covered business entity business entity ofofthe the approval approval ofofleave by by the the Department Department andand must must indicate indicate that that the the certification certification must address must address thethe employee employee or or covered covered contract contract worker's worker's ability ability to to perform perform those those essential essential functions. If functions. If the the employer employer or or covered covered business business entity entity satisfies satisfies these these requirements, requirements, thethe employee employee or covered or covered contract contract worker's worker's health health care care provider provider must must certify certify that that the the employee employee or or covered covered contract worker contract worker cancan perform perform thethe identified identified essential essential functions functions ofof their their job. job.

(3) An (3) An employer employer or or covered covered business business entity entity may may delay delay restoration restoration to to employment employment untiluntil an an employee or employee or covered covered contract contract worker worker submits submits aa required required fitness-for-duty fitness-for-duty certification, certification, unless unless the the employer or employer or covered covered business business entity entity has has failed failed to to provide provide the the notice notice required required 458 458 CMR CMR 2 . 1 1 2.11(2). If an If an employer employer or or covered covered business business entity entity provides provides the the notice notice required, required, an an employee employee or or covered covered contract worker contract worker who who does does not provide aa fitness-for-duty not provide fitness-for-duty certification certification following following thethe approved approved leave period leave period byby the the Department Department isis no no longer longer entitled entitled to to reinstatement. reinstatement. In In furtherance furtherance of of the the foregoing, an foregoing, an employee employee or or covered covered contract contract worker worker who who does does not not provide provide aa fitness-for-duty fitness-for-duty certification following certification following the the approved approved leave leave period period by by the the Department Department shall shall not not be entitled to be entitled to an an extension of extension of benefits, unless said benefits, unless said extension extension would would comply comply with with the the requirements requirements of of 458 CMR 458 CMR 2. 1 2.10(2).

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(4) An (4) An employer employer oror covered covered business business entity entity is is not not entitled entitled to to aa certification certification of of fitness fitness to to return return to duty to duty for for each each absence absence taken taken onon an an intermittent intermittent oror reduced reduced leave leave schedule. schedule. AnAn employer employer oror covered business covered business entity entity is is entitled entitled to to aa certification certification of of fitness fitness to to return return to to duty duty for for such such absences absences up to up to once once every every 30 30 calendar calendar days days ifif reasonable reasonable safety safety concerns concerns exist exist regarding regarding the the employee employee oror covered contract covered contract worker's worker's ability ability to to perform perform their their duties, duties, based based onon the the serious serious health health condition condition for which for which they they took took leave. leave.

2. 12: Weekly 2.12: Weekly Benefit Benefit Amount Amount from from the the Department Department 1) 1 The The weekly weekly benefit benefit amount amount for for covered covered individuals individuals on on family family or or medical medical leave leave is is calculated calculated on the on the individual's individual's average average weekly weekly wage wage atat the the time time of of the the filing of aa request filing of request for for leave leave in in .08, .08, which which is is determined determined by by the the individual's individual's earnings earnings in in the the base base period period as as reported reported to the to the Massachusetts Massachusetts Department Department ofof Revenue Revenue pursuant pursuant to to .04 .04 and and 2.05 The weekly 2.05. The weekly benefit amount benefit amount shall shall not not change change during during the the term term of of the the approved approved leave leave period period subject to aa subject to pro-rated or pro-rated or reduced reduced benefit benefit amount amount as as described described inin 458 458 CMR CMR 2 . 1 and (6). 2.12(5) and (6).

(2) Calculation. (2) Subject to Calculation. Subject to the the limitations limitations described described in in 458 458 CMR2 CMR2.12(2).1 through (6), through (6), aa covered covered individual's weekly individual's weekly benefit benefit amount amount shall shall be be calculated calculated for for aa family family oror medical medical leave leave from from an an individual employer individual employer or or covered covered business business entity entity asas follows: follows: (a) The (a) The portion portion of of an an individual's individual's average average weekly weekly wage wage that that is is equal equal to to or or less less than than 50%50% of of the state the state average average weekly weekly wage wage shall shall be be replaced replaced at at aa rate rate of of 80%; 80%; andand (b) The (b) The portion portion of of an an individual's individual's average average weekly weekly wage wage that that is is more more than than 50% 50% ofof the the state state average weekly average weekly wage wage shall shall be be replaced replaced atat aa rate rate of of 50%. 50%.

(3) Eligible (3) Eligible Wages Wages or or Income. For purposes Income. For purposes of of calculating calculating the the weekly weekly benefit benefit amount, amount, aa covered individual's covered individual's average average weekly weekly wage wage shall shall include include only only those those wages wages or or qualifying qualifying earnings earnings subject to subject to the the contribution contribution requirements requirements of of .05, .05, and and M.G.L. M.G.L. c. c. 1175M, §§ 6. 6.

(4) Maximum. (4) Maximum. The The maximum maximum weekly weekly benefit benefit amount amount approved approved by by the the Department Department for for any any individual covered individual covered under under the the Trust Trust Fund Fund shall shall be be 64% 64% ofof the the state state average average weekly wage. A weekly wage. A covered individual covered individual with with multiple multiple employers employers or or covered covered business business entities entities is is not not required required toto take take paid family paid family oror medical medical leave leave from from each each employer employer or or covered covered business business entity entity during single during aa single period of period of paid paid family family or or medical medical leave. leave. Annually, Annually, not not later later than October 11stst of than October of each each year, year, thethe Department shall Department shall establish establish aa maximum maximum weekly weekly benefit benefit amount amount atat aa level level that that is is 64% 64% of of the the then-applicable state then-applicable state average average weekly weekly wage. The adjusted wage. The adjusted maximum maximum weekly weekly benefit benefit amount amount shall shall take effect take effect on January 11 stst of on January of the the year year following following such such calculation. calculation.

(5) Prorated (5) Prorated Benefit. For aa covered Benefit. For covered individual individual who who takes takes leave leave on on an an intermittent intermittent or or reduced reduced leave schedule, leave schedule, the the weekly weekly benefit benefit amount amount calculated calculated pursuant pursuant toto 458 458 CMR CMR 2. 12, shall 2.12, shall be be reduced in reduced in direct direct proportion proportion to to the the intermittent intermittent or or reduced reduced leave leave schedule. schedule.

(6) Reductions. (6) Reductions. The The weekly weekly benefit benefit amount amount for for aa period period shall shall bebe reduced reduced by by the the amount amount of of wages, wage wages, wage replacement, replacement, or or leave that aa covered leave that covered individual individual onon family family or or medical medical leave leave receives receives for that for that period period from from (a) (a) any government any government program program or or law, law, including including unemployment unemployment benefits benefits under under M.G.L. M.G.L. c. c. 1 5 1 or 151A, or workers' workers' compensation compensation under under M.G.L. M.G.L. c. c. 1152, other other than than for for permanent permanent partial disability partial disability incurred incurred prior prior to to the the family family oror medical medical leave leave application application for for benefits; benefits; (b) under (b) under other other state state or or federal federal temporary temporary or or permanent permanent disability disability benefits benefits law; law; (c) aa permanent (c) permanent disability disability policy policy oror program program of of an an employer employer or or covered covered business business entity; entity; or or unless the d) unless the aggregate aggregate amount amount aa covered covered individual individual receives receives would would exceed exceed the the covered covered individual's average individual's average weekly weekly wage, wage, the the weekly weekly benefit benefit amount amount for for aa period period shall shall not not be be reduced by reduced by the the amount amount of of wage wage replacement replacement that that aa covered covered individual individual on on family family oror medical medical leave receives leave receives for for that that period period from: from: 11. aa temporary temporary disability disability policy policy oror program program of of the the employer employer or or covered covered business business entity; entity; 2. aa paid 2. paid family family or or medical medical leave leave policy policy ofof the the employer employer or or covered covered business business entity; entity; or or 33. any any wages wages received received from from another another employer employer oor covered covered business business entity entity oor through through self-employment. self-employment.

458 CMR: DEPARTMENT 458 CMR: OF FAMILY DEPARTMENT OF AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2. 12: continued 2.12: continued

(e) aa covered (e) covered individual's individual's family family or or medical medical leave leave allotment allotment under under .08(8) .08(8) shall shall be proportionately be proportionately reduced reduced byby the the amount amount of of family family or or medical medical leave leave taken taken by by the the covered covered individual for individual for any any qualifying qualifying reason reason during during the the benefit benefit year. year. (f) the (f) the weekly weekly benefit benefit amount amount shall shall be be reduced reduced byby any any paid paid family family or or medical medical leave leave that that aa covered individual covered individual on on family family or or medical medical leave leave receives receives from from any any source source for for any any qualifying qualifying reason in reason in the the 112-month period period prior prior to to filing filing an an application application for for benefits. However, any benefits. However, any leave leave taken by taken by the the covered covered individual individual for for the the same same qualifying qualifying reason reason prior prior to to January January 11, 202 1 shall 2021, shall not count not count against against the the covered covered individual's individual's weekly weekly benefit benefit amount amount and/or and/or leave leave allotment. allotment.

(7) Initial (7) Initial Seven-day Seven-day Wait Wait Period. Period. No family or No family or medical medical leave leave benefits benefits are are payable payable during during the the first seven first seven calendar calendar days days after after the the date date on on which which job protected leave job protected leave begins. begins. TheThe initial initial seven-day wait seven-day wait period period for for paid paid leave leave benefits will count benefits will count against against the the total total available available period period of ofleave in aa benefit in benefit year. Where the year. Where the approved approved application application for for benefits involves leave benefits involves leave on on an an intermittent intermittent or reduced or reduced leave leave schedule, schedule, thethe wait wait period period shall shall be be seven seven consecutive consecutive calendar calendar days days from from the the date date of the first instance of leave from the employer, not the aggregate accumulation of seven days of the first instance of leave from the employer, not the aggregate accumulation of seven days of leave. of leave. There There shall shall be be an an initial initial seven-day seven-day wait wait period period forfor each each application application forfor benefits, with benefits, with the exception the exception of of medical medical leave leave during during pregnancy pregnancy or or recovery recovery from from childbirth childbirth ifif supported supported byby documentation by documentation by aa health health carecare provider provider that that this this medical medical leave leave is is immediately immediately followed followed byby family leave, family leave, in in which which case case the the seven-day seven-day wait wait period period forfor family family leave leave shall shall not not be be required. required.

(8) Substitution (8) Substitution of of Employer-provided Employer-provided Paid Paid Leave. Leave. (a) Covered (a) Covered individuals individuals whowho use use accrued accrued paid paid leave leave or or leave leave through through an an extended extended illness illness leave bank leave bank program program provided provided by by their their employer employer or or covered covered business business entity entity rather rather than than receive receive aa paid paid benefit benefit under under M.G.L. M.G.L. c. c. 1175M shall shall not not receive receive any any paid paid leave leave benefits benefits pursuant pursuant to to M.G.L. M.G.L. c. c. 1175M forfor aa period period of of time time for for which which they they received received accrued accrued paid paid time time oror leave leave through an through an extended extended illness illness leave leave program program from from their their employer employer or or covered covered business business entity entity and the and the accrued accrued paid paid leave leave oror leave leave from from anan extended extended illness illness leave leave program program provided provided by by an an employer or employer or covered covered business business entity entity shall shall run run concurrently concurrently with with anyany available available leave leave under under M.G.L. M.G.L. c. C. 1 175M. (b) Covered (b) Covered individuals individuals whowho choose choose to to use use accrued accrued leave leave paid paid by by the the employer employer or or covered covered business entity business entity are are required required to to follow follow the the employer's employer's or or covered covered business entity's notice business entity's notice and and certification processes certification processes related related to to the the use use of of this this leave. leave. (c) Employers (c) Employers and and covered covered business business entities entities are are required required to to inform inform employees employees or or covered covered contract workers contract workers who who choose choose to to use use accrued accrued leave leave paid paid or or leave leave from from anan extended extended illness illness leave program leave program provided provided by by the the employer employer or or covered covered business business entity entity that that the the use use of ofthese these leave leave accruals or accruals or leave leave from from anan extended extended illness illness leave leave program program will will run run concurrently concurrently withwith the the leave leave period provided period provided in in M.G.L. M.G.L. c. c. 1175M. (d) Upon (d) Upon request request from from the the Department, Department, employers employers and and covered covered business business entities, entities, if if any, any, shall report shall report the the use use of of accrued accrued leave leave by by covered covered individuals individuals for for this this purpose. purpose.

(9) Employer (9) Employer Reimbursement. Reimbursement. An An employer employer or or covered covered business business entity entity that that makes makes payments payments to aa covered to covered individual individual during during aa period period of of family family oror medical medical leaveleave that that are are equal equal toto or or greater greater than the than the amount amount required required under under 458458 CMR CMR 2 . 1 through (6) 2.12(2) through (6) shall shall bebe reimbursed reimbursed out out of of any any benefits due benefits due to to the the covered covered individual individual or or to to become become duedue from from thethe Trust Trust Fund Fund by by the the Department. Department. Reimbursement shall Reimbursement shall not not be be permitted permitted for for an an employer employer or or covered covered business business entity entity that that has has received an received an approved approved exemption exemption pursuant pursuant to to .07. 458 CMR 2.07. To qualify To qualify for for reimbursement reimbursement from from the the Department Department an an employer employer or or covered covered business business entity entity must make must make payments payments from: from: (a) temporary (a) temporary disability disability policy policy oror program program of of an an employer employer or or covered covered business business entity; entity; paid family, (b) paid (b) family, or or medical medical leave leave policy policy of of an an employer employer or or covered covered business business entity; entity; or or extended illness (c) extended (c) illness leave leave bank. bank. The policy The policy or or program program or or extended extended illness illness leave leave bankbank must must be be granted granted to to aa covered covered individual for individual for aa qualifying qualifying reason reason under under M.G.L. M.G.L. c. c. 1175M, that that isis separate separate from from andand in in addition addition to any to any accrued accrued paidpaid leave leave that that is is made made available available to to the the covered covered individual. individual. Employers Employers and and covered business covered business entities entities will will not not bebe eligible eligible for for reimbursement reimbursement from from thethe Department Department for for payments to a covered individual where the covered individual has elected to utilize accrued paid payments to a covered individual where the covered individual has elected to utilize accrued paid leave whether leave whether it it is is in in lieu lieu of of applying applying forfor benefits benefits toto the the Department Department or or supplementary supplementary to to aa temporary disability temporary disability policy policy or or program program of ofanan employer employer or or covered covered business business entity; entity; oror paid paid family, family, or medical or medical leave leave policy policy of ofan an employer employer or or covered covered business business entity. entity. InIn order order to to be be eligible eligible for for any any reimbursement under reimbursement under 458 . 1 employers and 2.12(9), employers and covered covered business business entities entities will will bebe required to required to produce produce evidence evidence thatthat payments payments to to covered covered individuals individuals for for aa qualifying qualifying reason reason were were consistent with consistent with the the requirements requirements set set forth forth inin 458 458 CMR CMR 2.00,2.00, and and M.G.L. M.G.L. c. c. 1175M.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2. 12: continued 2.12: continued

In no In no event event shall shall the the Department Department reimburse reimburse anan employer employer or or covered covered business business entity entity where where the covered the covered individual individual has has received received aa benefit benefit from from the the Trust Trust Fund Fund for for the the same same period period of of time. time.

2. 1 2.13: Intermittent Leave Intermittent Leave and and Reduced Reduced Leave Leave Schedules Schedules 1) 1 Generally. Generally. A A covered covered individual individual may may take take family family or or medical medical leaveleave onon an an intermittent intermittent oror reduced leave reduced leave schedule, schedule, as as follows: follows: (a) For (a) For family family leave leave toto bond bond with with aa child child during during the the first first 12 12 months months afterafter the the child's child's birth, birth, adoption, or adoption, or foster foster care care placement, placement, leave leave maymay bebe taken taken on on an an intermittent intermittent or or reduced reduced leave leave schedule only schedule only if if the the employer employer or or covered covered business business entity entity and and employee employee or or covered covered contract contract worker mutually worker mutually agree. agree. (b) For (b) For family family leave leave toto care care forfor aa family family member's member's serious serious health health condition, condition, to to care care for for aa family member family member who who is is aa covered covered service service member, member, leave leave may may bebe taken taken onon an an intermittent intermittent oror reduced leave reduced leave schedule schedule if if the the health health care care provider provider determines determines it it is is medically medically necessary. necessary. (c) For (c) For family family leave leave due due to to aa qualifying qualifying exigency exigency arising arising out out ofof aa family family member's member's active active duty or duty or impending impending call call to to active active duty duty in in the the Armed Armed Forces, Forces, leave leave may may be be taken taken on on anan intermittent or intermittent or reduced reduced leave leave schedule. schedule. (d) For (d) For medical medical leave leave due due to to aa covered covered individual's individual's ownown serious serious health health condition, condition, intermittent intermittent leave may leave may be be taken taken ifif medically medically necessary. necessary. An An employee employee or or covered covered contract contract worker worker shall shall advise the advise the employer employer or or covered covered business business entity, entity, upon upon request, request, of of the the reasons reasons why why the the intermittent/reduced leave intermittent/reduced leave schedule schedule is is necessary necessary andand of of the the schedule schedule for for treatment, treatment, if if applicable. The applicable. The employee employee or or covered covered contract contract worker worker andand employer employer or or covered covered business business entity shall entity shall attempt attempt toto work work out out aa schedule schedule for for such such leave leave that that meets meets thethe individual's individual's needs needs without unduly without unduly disrupting disrupting the the employer employer or or covered covered business business entity's entity's operations, operations, subject subject to to the the approval of approval of the the health health care care provider. provider. (e) Self-employed (e) Self-employed individuals individuals who who have have elected elected coverage coverage and and former former employees employees may may take take leave intermittently leave intermittently or reduced leave on aa reduced or on leave schedule. schedule.

(2) Agreed-to (2) Agreed-to Intermittent Intermittent or or Reduced Reduced LeaveLeave Schedules. Schedules. An An employee employee or or covered covered contract contract worker who worker who isis approved approved forfor and and takes takes leave leave on on an an intermittent intermittent oror reduced reduced leave leave schedule schedule and and who fails who fails to to work work during during the the times times or or on on the the schedule schedule agreed agreed to to with with the the employer employer may may be be subject subject to employer to employer discipline. discipline. AnAn employer employer shall shall notify notify the the Department Department when when an an employee employee approved approved for intermittent for intermittent leave leave fails fails to to adhere adhere to to the the agreed-upon agreed-upon intermittent intermittent or or reduced reduced leave leave schedule. schedule. In the In the event event that that an an employee's employee's utilization utilization of of intermittent intermittent leave leave isis inconsistent inconsistent with with the the Department's approval, Department's approval, itit shall shall not not be be considered considered retaliation retaliation under under 458 CMR 2. 1 458 CMR for an 2.16(2) for an employer to employer to request request additional additional information information related related to to the the use use of of leave. leave. An employer An employer or or covered covered business business entity entity shall shall furnish furnish the the Department Department with with wages wages oror qualified qualified earnings paid earnings to aa covered paid to covered individual individual on on aa monthly monthly basis basis or or at at other other intervals intervals deemed deemed necessary necessary in the in the discretion discretion of of the the Department. Department. The The Department Department may seek aa refund may seek refund from from the the covered covered individual or individual or offset offset any any future future benefit benefit payments payments where where the the Department Department has has determined determined that that the the covered individual covered individual has has received received wages wages or or qualifying qualifying payments payments fromfrom both both the the employer employer oror covered business covered business entity entity and and benefits benefits from from the the Trust Trust Fund Fund for for the the same same period. period.

(3) Impact (3) Impact on on Leave Leave Allotments. Taking leave Allotments. Taking leave intermittently intermittently or on aa reduced or on reduced leave leave schedule schedule pursuant to pursuant to 458 . 1 and 2.13, and M.G.L. M.G.L. c. c. 1175M, §§§ 2(c)(2)(A) 2(c)(2)(A) and and (B) (B) shall shall result result in in aa proportionate reduction proportionate reduction inin the the covered covered individual's individual's available available allotment allotment of of leave. leave. For example, For example, if ifan an employee employee whowho would would otherwise otherwise work work 40 40 hours hours per per week week takes takes eight eight hours hours of intermittent of intermittent leave in aa week, leave in week, that that leave leave would would count as 11//55 of count as of aa week week ofof leave. leave. If If an an employee employee who would who would otherwise otherwise work work 3030 hours hours per per week week only only works works 2020 hours hours onon aa reduced reduced leave leave schedule, schedule, the ten the ten hours hours of of leave leave would would constitute constitute a 1/3 of of aa week week of of leave leave to to be be counted counted against against the the available available allotment of allotment of leave. leave.

(4) In (4) In the the event event that that aa covered covered individual's individual's work work schedule schedule varies varies from from week week toto week, week, the the maximum weekly maximum weekly benefit benefit amount amount shall shall be be calculated calculated based based on on the the average average number number of of hours hours worked from worked from the the two two highest highest quarters quarters of of the the 12 12 months months preceding preceding such such individual's individual's application application for benefits for benefits under under M.G.L. M.G.L. c.c. 1175M. A A covered covered individual individual shall shall not not be be eligible eligible for for benefits benefits in in excess of excess of the the number number ofof hours hours so so determined determined by by the the Department. Department. ForFor purposes purposes ofof intermittent intermittent leave, benefits leave, benefits may may bebe prorated prorated onon an an hourly hourly basis basis utilizing utilizing the the average average number number ofof hours hours worked worked during the during the 112 months months preceding preceding such such individual's individual's application application for for benefits benefits under under M.G.L. M.G.L. c.c. 1175M.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2. 1 2.13: continued continued

(5) Weekly (5) Weekly Benefit Benefit Adjustment. Adjustment. As As described described in in 458 458 CMR CMR 2 . 1 2.12(5), aa covered covered individual individual who who takes leave takes leave on on an an intermittent intermittent or or reduced reduced schedule schedule shall receive aa weekly shall receive weekly benefit benefit amount amount that that is is reduced in reduced in direct direct proportion proportion to to the the intermittent intermittent or or reduced reduced leave leave schedule. schedule.

(6) The (6) The benefit benefit year year for for aa covered covered individual individual who who received received benefits benefits for for an an intermittent intermittent leave leave will will commence, following commence, following an an approval approval byby the the Department Department for for continued continued benefits, on the benefits, on the Sunday Sunday immediately preceding immediately preceding thethe first first absence absence following following the the exhaustion exhaustion of of the the prior prior benefit benefit year. year.

2. Application for 14: Application 2.14: for Benefits Benefits Denials Denials and and Appeals Appeals 1) 1 TheThe Department Department will will provide contemporaneous notice provide contemporaneous notice to to the the individual individual and and the the employers employers or covered or covered business entities (where business entities (where applicable) applicable) of of the the approval approval oror denial denial of of an an application application for for benefits. benefits.

(2) A (2) covered individual A covered individual may may appeal appeal aa denial denial of of family family or or medical medical leave leave benefits benefits toto the the Department. A Department. covered individual A covered individual who who is is denied denied family family or or medical medical leave leave benefits benefits by by aa private private plan maintained plan maintained by by an an employer employer or or covered covered business business entity entity pursuant pursuant to to 458 458 CMR CMR 2.07(6)(a), 2.07(6)(a), shall be shall be subject subject to to appeal appeal pursuant pursuant to to 458 458 CMR CMR 2 . 1 and 2.14, and M.G.L. c. 1175M, §§ 8(d). M.G.L. c. 8(d).

(3) Filing (3) Filing Deadline Deadline and and Late Late Appeals. Appeals. A A covered covered individual's individual's request request for for an an appeal appeal shall shall be be filed within filed within ten ten calendar calendar days days of of receipt receipt of of notice notice of of the the determination. determination. The The Department Department may may extend the extend the ten-day ten-day filing filing period period where where an an individual individual establishes establishes to to the the satisfaction satisfaction of of the the Department that Department that circumstances circumstances beyond beyond the the individual's individual's control control prevented prevented the the filing of aa request filing of request for an for an appeal appeal within within the the prescribed prescribed ten-day ten-day filing filing period. When the period. When the appeal appeal is is requested requested by by aa covered individual covered individual subject subject to to an an approved approved private private plan, the covered plan, the covered individual individual requesting requesting the the appeal shall appeal shall also also provide provide aa complete complete copy copy ofof the the request request toto the the employer employer or or covered covered business business entity that entity that maintains maintains the the approved approved private private plan. plan.

(4) When (4) When requesting requesting an an appeal, appeal, aa covered covered individual individual may may request hearing. A request aa hearing. covered A covered individual may individual may agree to aa disposition agree to disposition of ofthe the matter matter onon the the record record without without aa hearing hearing or or may may submit submit documents or documents or evidence evidence without without appearing appearing at at aa hearing. hearing. The The conduct conduct of of aa hearing hearing regarding regarding anan appeal of appeal of aa denial denial ofof benefits benefits shall shall be be inin accordance accordance with with the the procedures procedures prescribed prescribed byby M.G.L. M.G.L. c. c. 30A, 30A, and and 801 CMR 11.02: Inf 801 CMR Hearing Rules. Informal/Fair Hearing The Department Rules. The Department will will issue issue aa final final decision decision affirming, affirming, modifying, modifying, oror revoking revoking thethe initial initial determination determination within within 30 30 calendar calendar days of days of the the hearing. hearing.

(5) Following (5) Following thethe Department's Department's issuance issuance ofof aa final final decision decision on on the the appeal, appeal, an an individual individual aggrieved by aggrieved by the the Department's Department's decision decision may may take take aa further further appeal appeal by by filing filing aa complaint complaint in in the the district court district court for for the the county county in in Massachusetts Massachusetts where where thethe individual individual resides resides oror was was last last employed. employed. Such court Such court action action must must be be commenced commenced within within 30 30 calendar calendar days days of ofthe the date date the the Department's Department's final final decision is decision is received received by by the the individual. individual.

(6) When (6) When aa notice notice of of aa determination determination or or aa decision decision byby the the Department Department is is transmitted transmitted by by means means of an of an electronic electronic communication, communication, it it shall shall be be presumed presumed received received onon the the date date it it is is sent, sent, except except that that any notice any notice transmitted after 55:00 P transmitted after P.M. oror on on aa state state or or federal federal holiday, holiday, Saturday, Saturday, or or Sunday, Sunday, shall shall be presumed be presumed received received on on the the next next business business day. day. When When notice notice of of aa determination determination or or aa decision decision is sent is sent by by regular regular mail, mail, it it shall shall be be presumed presumed received received three three calendar calendar days days after after it it is is mailed, mailed, except except that if that if the the third third day day falls falls on on aa state state or or federal federal holiday, holiday, Saturday, Saturday, or or Sunday, Sunday, thethe notice notice shall shall be be presumed received presumed received on on the the next next business business day. day. However However thethe notice notice is is transmitted, transmitted, the the presumption presumption may be may be rebutted rebutted by by substantial substantial andand credible credible evidence evidence satisfactory satisfactory toto the the Department Department that that the the notice was notice was actually actually received received on on an an earlier earlier or or later later date. date. A request for A request for an an appeal appeal shall shall be be deemed deemed filed on filed on the the postmark postmark date date if if sent sent by by regular regular mail mail and and otherwise otherwise when when actually actually received received by by the the Department. A Department. A request request received received after after 55:00 P.M. shall be P.M. shall be deemed deemed filed filed on on the the next next business business day. day.

458 CMR: DEPARTMENT 458 CMR: DEPARTMENT OF OF FAMILY AND MEDICAL FAMILY AND MEDICAL LEAVE LEAVE

2. 1 2.15: Attestations and Attestations and False False Statements Statements

Individuals applying Individuals applying forfor benefits benefits or or seeking seeking toto amend amend or or extend extend an an approved approved application application for for benefits shall benefits shall attest attest to to the the truthfulness truthfulness of ofall all statements statements and and submissions submissions made made to to the the Department. Department. An individual An individual shall shall not not be be eligible eligible toto receive receive family family oror medical medical leave leave benefits benefits if if the the Department Department by aa preponderance finds by finds preponderance of of the the evidence evidence thatthat the the individual individual willfully willfully made made aa false false statement statement oror representation or representation or willfully willfully withheld withheld aa material material fact fact in in order order to to obtain obtain benefits. benefits. In determining In determining whether whether an an individual individual willfully willfully made made false false statements, statements, the the Department Department will will consider the consider the nature nature and and cause cause of of the the false false statement statement and and the the capacity capacity of of the the particular particular individual individual to recognize to recognize thethe error error resulting resulting in in the the false false statement. statement. Factors Factors considered considered shall shall include include the the individual's age individual's age and and intelligence intelligence as as well well asas any any physical, physical, mental, educational, or mental, educational, or linguistic linguistic limitation, including limitation, including lack lack of of facility facility with with the the English English language. language. A A good good faith faith mistake mistake ofof fact fact by by the individual the individual inin the the filing filing of of an an application application for for benefits benefits does does not not constitute constitute willfulness. willfulness. A A false false statement shall statement shall be be considered considered willful willful ifif the the individual: individual: 1) 1 furnishes furnishes information information that that the the individual individual knew, knew, or or reasonably reasonably should should have have known, known, to to be be incorrect; incorrect;

(2) fails (2) fails to to furnish furnish information information that that the the individual individual knew knew or or reasonably reasonably should should have have known known to to be material; be material; or or

(3) accepts (3) accepts aa payment payment that that the the individual individual knew, knew, or or reasonably reasonably should should have have known known that that the the individual was individual was not not entitled entitled to to receive. receive. If the If the Department Department finds finds that that an an individual individual received received benefits benefits on on the the basis false statement, of aa false basis of statement, it may it may require require the the individual individual to to repay repay to to the the Trust Trust Fund Fund any any benefits benefits received. received. Employees Employees who who have been have been determined determined toto have have received received benefits benefits on on the the basis basis of ofaa false false statement statement shall shall not not receive receive the protections the protections and and benefits benefits of of 458 458 CMR CMR 2. 1 1 through 2.16(1) through (3). (3).

2. 1 2.16: Employee Job Employee Job Protection, Protection, Prohibition Prohibition on on Retaliation, Retaliation, Maintenance Maintenance oof Health Health Insurance Insurance 1) 1 JobJob Protection. Protection. An An employee employee who who has has taken taken family family or or medical medical leave leave under under M.G.L. M.G.L. c. c. 1175M shall on shall on returning returning to to employment employment at at the the close close of of aa period period ofof approved approved family family or or medical medical leave leave be restored be restored to to the the employee's employee's previous previous position position or or to to an an equivalent equivalent position position with with the the same same status, status, pay, employment benefits, pay, employment length-of-service credit benefits, length-of-service credit and and seniority seniority asas of of the the date date of of leave. leave. An An employer shall employer shall not not bebe required required to to restore restore an an employee employee who who has has taken taken family family or or medical medical leave leave under M.G.L. under M.G.L. c. c. 1175M to to the the previous previous or or to to an an equivalent equivalent position position ifif other other employees employees of of equal equal length of length of service service credit credit and and status status inin the the same same or or equivalent equivalent positions positions have have been been laid laid off off due due to to economic conditions economic conditions or or other other changes changes in in operating operating conditions conditions affecting affecting employment employment duringduring the the period of period of leave; leave; provided, however, that provided, however, that the the employee employee who who has has taken taken leave leave shall shall retain retain any any preferential consideration preferential consideration for for another another position position to to which which thethe employee employee was was entitled entitled as as of of the the date date of leave. of leave. Nor Nor shall shall anan employer employer be be required required toto restore restore anan employee employee who who was was hired for aa specific hired for specific term or term or only only to to perform perform workwork on on aa discrete discrete project, project, if if the the employment employment term term oror project project is is over over andand the employer the employer would would not not otherwise otherwise havehave continued continued to to employ employ the the employee. employee. Upon reinstatement, Upon reinstatement, taking taking family family or or medical medical leave leave under under M.G.L. M.G.L. c. c. 1175M shall shall not not affect affect an employee's an employee's previously previously held held right right to to accrue accrue vacation vacation time, time, sick sick leave, leave, bonuses, advancement, bonuses, advancement, seniority, length-of-service seniority, length-of-service credit credit oror other other employment employment benefits, plans or benefits, plans or programs. programs. Leave Leave periods under periods under M.G.L. M.G.L. c. c. 1175M needneed not not be be treated treated as as credited credited service service for for purposes purposes of of benefit benefit accrual, vesting accrual, vesting and and eligibility eligibility toto participate. participate.

(2) Maintenance (2) Maintenance of of Health Health Insurance. During the Insurance. During the duration duration ofof an an employee's employee's family family or or medical medical leave, the leave, the employer employer shall shall continue continue to to provide provide for, for, contribute contribute to, or otherwise to, or otherwise maintain maintain the the employee's employment-related employee's employment-related health health insurance insurance benefits, benefits, ifif any, any, at at the the level level and and under under the the conditions that conditions that coverage coverage would would have have been been provided provided ifif the the employee employee had had continued continued working working continuously for continuously for the the duration duration of of such such leave. leave. The The provision provision “otherwise "otherwise maintain” maintain" shall shall be be interpreted broadly interpreted broadly toto encompass encompass any any method method of of benefit benefit maintenance maintenance or or approximation approximation of of benefits that benefits that permits permits anan employee employee taking taking family family or or medical medical leave leave to to maintain maintain access access to to health health coverage for coverage for the the duration duration of of the the leave leave on on the the same same oror equivalent equivalent terms, including the terms, including the employee' employee’s costs for costs for such such coverage, coverage, such such as as premium premium contributions, contributions, co-pays, co-pays, and and deductibles. deductibles. Employers Employers may “otherwise may "otherwise maintain” maintain" coverage coverage in in aa variety variety of ofways ways to to comply comply with with this this provision provision including, including, but not but not limited limited to, to, the the following following examples: examples:

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2. 1 2.16: continued continued

(a) The (a) The employer employer continues continues to to pay pay itsits portion portion of of the the group-insurance-plan group-insurance-plan health-insurance health-insurance premium for premium for that that employee employee for for the the duration duration of of the the family family or or medical medical leave leave from from thethe employer, and employer, and the the employee employee portion portion of of the the employee's employee's employment-related employment-related health health insurance insurance benefits is benefits is remitted remitted by by the the employee employee in in accordance accordance with with thethe employer's employer's uniformly-applied uniformly-applied policies or policies or practices. practices. (b) The (b) The employer employer reimburses reimburses the the employee employee out out ofof its its general general assets assets for for both both thethe monetary monetary equivalent of equivalent of the the non-employee non-employee portionportion of of the the health health insurance insurance premium premium and and any any additional additional amount required amount required to to be be paid paid under under the the federal federal COBRA COBRA law law (29 (29 U.S.C. U.S.C. § 1 1 1 et §1161 et seq.) seq.) oror the the Massachusetts Mini Massachusetts Mini COBRA COBRA law law (M.G.L. (M.G.L. c. c. 1176J, 761, §§ 9) 9) that that is is in in excess excess ofofthe the non-employee non-employee portion of portion ofthe the health health insurance insurance premium, premium, so so that that the the amount amount the the employee employee payspays toward toward health health insurance remains insurance remains unchanged, unchanged, untiluntil the the employee employee can can resume resume regular regular employer-sponsored employer-sponsored coverage. This coverage. This example example would would be be applicable applicable only only if if an an employee employee is is eligible eligible forfor such such coverage. In coverage. In aa multi-employer multi-employer plan, the reimbursement plan, the reimbursement out out of of general general assets assets would would be be made made by the by the employer employer employing employing an an employee employee at at the the start start ofof the the employee's employee's family family or or medical medical leave. leave. (c) An (c) An employer employer who who participates participates in in aa plan, plan, such such asas aa multi-employer multi-employer health health plan plan toto which which more than more than one one employer employer is is required required to to contribute contribute and and which which is is maintained maintained pursuant pursuant to to one one or more or more collective collective bargaining bargaining agreements agreements between between employee employee organization(s) organization(s) and and the the employers, that employers, that establishes establishes eligibility eligibility for for coverage coverage for for aa period period of of time time based based on on hours hours worked or worked or contributions contributions mademade during during an an earlier earlier qualifying qualifying period, allows employees period, allows employees who who have established have established eligibility eligibility for for coverage coverage prior prior to beginning aa family to beginning family oror medical medical leaveleave toto continue coverage continue coverage while while they they are are taking taking leave leave andand while while they they remain remain eligible eligible forfor coverage coverage based on based on the the earlier earlier qualifying qualifying period, period, or or allows allows them them to to use use banked banked hours. hours. (d) An (d) An employer employer participates participates in in aa multi-employer multi-employer plan plan that that contains contains aa provision provision for for maintaining coverage maintaining coverage suchsuch asas through through pooled pooled contributions contributions by by all all employers employers party party toto the the plan. plan. Employers shall Employers shall not not be be required required toto provide provide for,for, contribute contribute to, to, or or otherwise otherwise maintain maintain employment- employment­ related health related health insurance insurance benefits benefits to to an an employee employee who who does does not not receive receive or or is is not not eligible eligible toto receive receive such employment-related such employment-related health health insurance insurance benefits benefits whenwhen thethe employee’s employee's familyfamily oror medical medical leaveleave begins. Nor are begins. Nor are employers employers required required to to provide provide for, for, contribute contribute to, to, or or otherwise otherwise maintain maintain health health insurance benefits insurance benefits to to covered covered individuals individuals who who resign during aa leave resign during leave oror are are former former employees employees when the when the covered covered individual' family or individual’s family or medical medical leave leave commences. commences.

(3) Retaliation. (3) Retaliation. It It shall shall be unlawful for be unlawful for any any employer employer to to threaten threaten toto retaliate retaliate or or to to retaliate retaliate by by discharging, firing, discharging, firing, suspending, suspending, expelling, expelling, disciplining, disciplining, through through thethe application application of of attendance attendance policies or policies or otherwise, otherwise, threatening threatening or or in in any any other other manner manner discriminating discriminating against against anan employee employee for for exercising any exercising any right right toto which which such such employee employee is is entitled entitled under under M.G.L. M.G.L. c. c. 1175M or or with with the the purpose of purpose of interfering interfering withwith the the exercise exercise of of any any right right to to which which such such employee employee is is entitled entitled under under M.G.L. Cc. 1175M. M.G.L. It shall It shall bebe unlawful unlawful for for any any employer employer to to threaten threaten to to retaliate retaliate oror to to retaliate retaliate by by discharging, discharging, firing, suspending, firing, suspending, expelling, expelling, disciplining, disciplining, through through the the application application of of attendance attendance policies policies oror otherwise, threatening otherwise, threatening or or in in any any other other manner manner discriminating discriminating against against anan employee employee who who has has filed filed aa complaint complaint or or instituted instituted or or caused caused to to be be instituted instituted aa proceeding proceeding under under or or related related toto this this anti-retaliation provision, anti-retaliation provision, has has testified testified oror is is about about toto testify in an testify in an inquiry inquiry or or proceeding proceeding or or has has given or given or is is about about toto give give information information connected connected to to any any inquiry inquiry or or proceeding proceeding relating relating to to this this provision. Nothing provision. Nothing in in M.G.L. M.G.L. c. c. 1175M or or 458 .00, 2.00, however, however, shall shall limit limit an an employer's employer's ability to ability to reasonably reasonably communicate communicate with with anan employee employee who who isis approved approved for for leave leave benefits. benefits. Additionally, an Additionally, an employer employer may may require require an an employee employee who who hashas been been approved approved for for leave leave benefits to benefits to comply comply withwith reasonable reasonable attendance attendance and and call call inin procedures procedures established established by by the the employer. An employer. An employee employee who who is is approved approved for for intermittent intermittent leave leave benefits must work benefits must work with with the the employer to employer to make make anan effort effort toto take take leave leave so so asas not not to to unduly unduly disrupt disrupt the the employer's employer's operation. operation. Furthermore, an Furthermore, an employee employee who who takes takes leave leave onon anan intermittent intermittent or or reduced reduced leave leave schedule schedule and and who who fails to fails to work work during during the the times times agreed agreed to to between between the the employer employer and and the the employee employee may may bebe subject subject to employer to employer discipline. discipline. An An employee employee who who fails fails toto return return toto work work oror to to the the employee's employee's regular regular work schedule work schedule following following the the expiration expiration of of the the leave leave period period maymay be be subject subject to to employer employer discipline. discipline.

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(4) Presumption. (4) Presumption. Any Any negative negative change change in in the the seniority, seniority, status, status, employment employment benefits, pay or benefits, pay or other terms other terms or or conditions conditions of of employment employment of: of: (a) an (a) an employee employee which which occurs occurs any any time time during during aa leave leave taken taken by by an an employee employee under under M. M.G.L. c. c. 1175M, or or during during the the six-month six-month periodperiod following following an an employee's employee's leaveleave or or restoration restoration to aa position to position pursuant pursuant to to 458 458 CMR CMR 2 . 12.16(3); or or (b) an (b) an employee employee who who has has participated participated in in proceedings proceedings or or inquiries inquiries pursuant pursuant to to . .161 within six within six months months oof the the termination termination oof proceedings proceedings shall shall bbe presumed presumed to to bbe retaliation retaliation under under . 1 458 CMR 2.16(3). A negative change A negative change shallshall not not include include trivial, trivial, oror subjectively subjectively perceived perceived inconveniences inconveniences that that affect de affect de minimis aspects of minimis aspects of an an employee's employee's work. work. SuchSuch presumption presumption shallshall be be rebutted rebutted only only by clear by clear and and convincing convincing evidence evidence that that such such employer's employer's action action waswas not not retaliation retaliation against against the the employee and employee and that that the the employer employer had had sufficient sufficient independent independent justification justification forfor taking taking such such action and action and would would have have in in fact fact taken taken such such action action inin the the same same manner manner andand at at the the same same time time the the action was action was taken, taken, regardless regardless of of the the employee's employee's use use ofof leave, leave, restoration restoration to to aa position position oror participation in participation in proceedings proceedings or or inquiries inquiries as as described described in in . 458 CMR 1 An 2.16. An employer employer found found to have to have threatened, threatened, coerced coerced or or taken taken reprisal reprisal against against anyany employee employee pursuant pursuant to to 458 458 CMR CMR 2.2.161 shall rescind shall rescind any any adverse adverse alteration alteration in in the the terms terms oof employment employment for for such such employee employee andand shall shall offer reinstatement offer reinstatement to to any any terminated terminated employee employee and and shall shall also also be be liable liable in in an an action action brought brought pursuant to pursuant to . 1 458 CMR 2.16(5). A notification to A notification to the the Department Department by by an an employer, employer, under bona fide under aa bona belief that fide belief that the the employee has employee has committed committed fraud fraud in in connection connection with with the the employee's employee's application application forfor benefits, benefits, shall not shall not give give rise rise to to anan action action of of retaliation retaliation or or presumed presumed retaliation retaliation under under 458 CMR 2. 458 CMR 1 2.16. For the For the avoidance avoidance of of doubt, doubt, leave leave taken taken by by an an employee employee under under 458458 CMR CMR 2. 1 shall 2.16(3), shall begin on begin on the the first first day day that that anan employee employee takes takes leave. leave. The provisions The provisions of of 458 . 1 shall 2.16 shall apply apply to to all all leave leave associated associated withwith aa qualifying qualifying reason allowable reason allowable underunder 458 CMR 2.00, 458 CMR 2.00, regardless regardless of ofwhether whether the the employee employee has has actually actually filed filed an application an application for for benefits benefits with with the the Department. Department. An employer's An employer's application application of of aa preexisting preexisting employment employment rule rule or or policy policy shall shall be be deemed deemed to be to be clear clear andand convincing convincing evidence. evidence.

(5) Civil (5) Civil Actions. Actions. AnAn employee employee or or former former employee employee aggrieved aggrieved by by aa violation violation of of 458 458 CMR CMR 2. 1 2.16 M.G.L. cc.. 1175M, §§ 2(e) or M.G.L. or 2(e) and and (f) (f) may, may, not not more more than than three three years years after after the the violation violation occurs, occurs, institute aa civil institute civil action action in in the the superior superior court. court.

2. 1 2.17: Severability Severability

If any If any provision provision of of .00 .00 or or the the application application of of any any provision provision of of 458 458 CMR CMR 2.00 to 2.00 to any person any person or or circumstance circumstance is is finally finally held held invalid invalid by by aa court court of of competent competent jurisdiction, the jurisdiction, the validity of validity of the the remainder remainder of of .00 458 CMR shall not 2.00 shall not be be affected. affected.

REGULATORY AUTHORITY REGULATORY AUTHORITY

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