Section 2.12 - Weekly Benefit Amount from the Department(1) The weekly benefit amount for covered individuals on family or medical leave is calculated on the individual's average weekly wage at the time of the filing of a request for leave in 458 CMR 2.08, which is determined by the individual's earnings in the base period as reported to the Massachusetts Department of Revenue pursuant to 458 CMR 2.04 and 2.05. The weekly benefit amount shall not change during the term of the approved leave period subject to a pro-rated or reduced benefit amount as described in 458 CMR 2.12(5) and (6).(2)Calculation. Subject to the limitations described in 458 CMR 2.12(2) through (6), a covered individual's weekly benefit amount shall be calculated for a family or medical leave from an individual employer or covered business entity as follows: (a) The portion of an individual's average weekly wage that is equal to or less than 50% of the state average weekly wage shall be replaced at a rate of 80%; and(b) The portion of an individual's average weekly wage that is more than 50% of the state average weekly wage shall be replaced at a rate of 50%.(3)Eligible Wages or Income. For purposes of calculating the weekly benefit amount, a covered individual's average weekly wage shall include only those wages or qualifying earnings subject to the contribution requirements of 458 CMR 2.05, and M.G.L. c. 175M, § 6.(4)Maximum. The maximum weekly benefit amount approved by the Department for any individual covered under the Trust Fund shall be 64% of the state average weekly wage. A covered individual with multiple employers or covered business entities is not required to take paid family or medical leave from each employer or covered business entity during a single period of paid family or medical leave. Annually, not later than October 1st of each year, the Department shall establish a maximum weekly benefit amount at a level that is 64% of the then-applicable state average weekly wage. The adjusted maximum weekly benefit amount shall take effect on January 1st of the year following such calculation.(5)Prorated Benefit. For a covered individual who takes leave on an intermittent or reduced leave schedule, the weekly benefit amount calculated pursuant to 458 CMR 2.12, shall be reduced in direct proportion to the intermittent or reduced leave schedule.(6)Reductions. The weekly benefit amount for a period shall be reduced by the amount of wages, wage replacement, or leave that a covered individual on family or medical leave receives for that period from(a) any government program or law, including unemployment benefits under M.G.L. c. 151 A, or workers' compensation under M.G.L. c. 152, other than for permanent partial disability incurred prior to the family or medical leave application for benefits;(b) under other state or federal temporary or permanent disability benefits law;(c) a permanent disability policy or program of an employer or covered business entity; or(d) unless the aggregate amount a covered individual receives would exceed the covered individual's average weekly wage, the weekly benefit amount for a period shall not be reduced by the amount of wage replacement that a covered individual on family or medical leave receives for that period from:1. a temporary disability policy or program of the employer or covered business entity;2. a paid family or medical leave policy of the employer or covered business entity; or3. any wages received from another employer or covered business entity or through self-employment.(e) a covered individual's family or medical leave allotment under 458 CMR 2.08(8) shall be proportionately reduced by the amount of family or medical leave taken by the covered individual for any qualifying reason during the benefit year.(f) the weekly benefit amount shall be reduced by any paid family or medical leave that a covered individual on family or medical leave receives from any source for any qualifying reason in the 12-month period prior to filing an application for benefits. However, any leave taken by the covered individual for the same qualifying reason prior to January 1, 2021, shall not count against the covered individual's weekly benefit amount and/or leave allotment.(7)Initial Seven-day Wait Period. No family or medical leave benefits are payable during the first seven calendar days after the date on which job protected leave begins. The initial seven-day wait period for paid leave benefits will count against the total available period of leave in a benefit year. Where the approved application for benefits involves leave on an intermittent or reduced leave schedule, the wait period shall be seven consecutive calendar days from the date of the first instance of leave from the employer, not the aggregate accumulation of seven days of leave. There shall be an initial seven-day wait period for each application for benefits, with the exception of medical leave during pregnancy or recovery from childbirth if supported by documentation by a health care provider that this medical leave is immediately followed by family leave, in which case the seven-day wait period for family leave shall not be required.(8)Substitution of Employer-provided Paid Leave. (a) Covered individuals who use accrued paid leave or leave through an extended illness leave bank program provided by their employer or covered business entity rather than receive a paid benefit under M.G.L. c. 175M shall not receive any paid leave benefits pursuant to M.G.L. c. 175M for a period of time for which they received accrued paid time or leave through an extended illness leave program from their employer or covered business entity and the accrued paid leave or leave from an extended illness leave program provided by an employer or covered business entity shall run concurrently with any available leave under M.G.L. c. 175M.(b) Covered individuals who choose to use accrued leave paid by the employer or covered business entity are required to follow the employer's or covered business entity's notice and certification processes related to the use of this leave.(c) Employers and covered business entities are required to inform employees or covered contract workers who choose to use accrued leave paid or leave from an extended illness leave program provided by the employer or covered business entity that the use of these leave accruals or leave from an extended illness leave program will run concurrently with the leave period provided in M.G.L. c. 175M.(d) Upon request from the Department, employers and covered business entities, if any, shall report the use of accrued leave by covered individuals for this purpose.(9)Employer Reimbursement. An employer or covered business entity that makes payments to a covered individual during a period of family or medical leave that are equal to or greater than the amount required under 458 CMR 2.12(2) through (6) shall be reimbursed out of any benefits due to the covered individual or to become due from the Trust Fund by the Department. Reimbursement shall not be permitted for an employer or covered business entity that has received an approved exemption pursuant to 458 CMR 2.07. To qualify for reimbursement from the Department an employer or covered business entity must make payments from:
(a) temporary disability policy or program of an employer or covered business entity;(b) paid family, or medical leave policy of an employer or covered business entity; or(c) extended illness leave bank. The policy or program or extended illness leave bank must be granted to a covered individual for a qualifying reason under M.G.L. c. 175M, that is separate from and in addition to any accrued paid leave that is made available to the covered individual. Employers and covered business entities will not be eligible for reimbursement from the Department for payments to a covered individual where the covered individual has elected to utilize accrued paid leave whether it is in lieu of applying for benefits to the Department or supplementary to a temporary disability policy or program of an employer or covered business entity; or paid family, or medical leave policy of an employer or covered business entity. In order to be eligible for any reimbursement under 458 CMR 2.12(9), employers and covered business entities will be required to produce evidence that payments to covered individuals for a qualifying reason were consistent with the requirements set forth in 458 CMR 2.00, and M.G.L. c. 175M.
In no event shall the Department reimburse an employer or covered business entity where the covered individual has received a benefit from the Trust Fund for the same period of time.
Adopted by Mass Register Issue 1394, eff. 6/28/2019.Amended by Mass Register Issue 1422, eff. 7/24/2020.