FAQs for Employers
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What is “Topping off” and when does it go into effect?
Employees who apply for Paid Family and Medical Leave (PFML) benefits on or after November 1, 2023, will be allowed to supplement their PFML benefit with their accrued vacation pay, sick pay, or other paid leave provided under an employer policy (collectively, “Paid Time Off” or “PTO”) while on PFML. Employees who submit their PFML application on or after November 1, 2023, are subject to the new topping off guidelines.
What does “top off” mean?
Topping off allows employees on PFML to supplement their weekly PFML benefit with their accrued PTO, up to the employee’s Individual Average Weekly Wage (IAWW). Example: An employee’s IAWW = $2,000 and they have an approved PFML application that pays $1,100 per week. The employee may top off that amount with PTO up to $900, if available.
What is the Individual Average Weekly Wage (IAWW)?
An employee’s “Individual Average Weekly Wage” (IAWW) is calculated by the Department of Family and Medical Leave (DFML) from the amount an employee earned in the last four completed calendar quarters before the start of the employee’s benefit year. The IAWW is the average amount the employee earned per week in the two quarters when the employee earned the most money (or the one quarter with the most money if the employee only worked in two or fewer quarters). The IAWW is an average and not based on just the employee’s current weekly wage.
Can an employee top off their PFML benefits with PTO provided under an employer policy that normally would not be available for the type of leave being taken? For example, could the employee use paid sick leave to top off their family bonding leave benefits even where such leave is not permitted under the sick time PTO policy?
Consult your organization’s PTO policies. In this example, the sick time PTO likely could not be used to top off family bonding leave, provided that the employer’s sick time policy does not discriminate against an employee for exercising a right to which such employee is entitled to under the PFML program (M.G.L. c. 175M).
If your organization has an unlimited PTO policy, can an employee use it to top off PFML leave benefits?
Consult your organization’s PTO policies. Employees may use accrued sick or vacation pay or other paid leave provided under an employer policy to top off PFML benefits up to their IAWW, subject to the accrual and use rules of an employer’s PTO policies and provided further that the employer’s PTO policy does not discriminate against an employee for exercising a right to which such employee is entitled to under the PFML program (M.G.L. c. 175M).
If your organization has a holiday pay policy but your employee is out on leave when a holiday occurs, can they use holiday pay to top off PFML leave benefits?
Consult your organization’s PTO policies. Employees may use accrued sick or vacation pay, or other paid leave provided under an employer policy to top off PFML benefits up to their IAWW, subject to the accrual and use rules of an employer’s PTO policies and provided further that the employer’s PTO policy does not discriminate against an employee for exercising a right to which such employee is entitled to under the PFML program (M.G.L. c. 175M).
Will using PTO during PFML leave impact the weekly payments?
Using PTO to supplement PFML benefit payments will not impact your employee’s weekly PFML benefit and does not need to be reported to DFML.
How do I calculate what the top off amount would be for each employee?
You subtract the amount of the PFML benefits from the employee’s Individual Average Weekly Wage (IAWW). The difference is the maximum amount that can be paid out using the employee’s accrued PTO.
Can an employer offer employees Short Term Disability (STD) benefits that run concurrently with PFML leave benefits?
Yes, PFML benefits can be topped off with STD benefits, accrued sick or vacation pay, or other paid leave provided under an employer policy, subject to the accrual and use rules of an employer’s PTO policies and provided further that the employer’s PTO policy does not discriminate against an employee for exercising a right to which such employee is entitled to under the PFML program (M.G.L. c. 175M). If a STD policy provides full salary replacement, or tops off PFML benefits up to the employee’s IAWW, then the employee cannot use other paid leave to add to the top off without reducing the sum of PFML benefits.
Who has access to the employee’s Individual Average Weekly Wage (IAWW) and PFML benefit amount?
Employers with a registered Leave Administrator can determine an employee’s weekly PFML benefit rate and their IAWW by accessing the employee’s PFML Approval Notice. If you do not have a registered Leave Administrator, you cannot access this information. Being actively engaged in managing your employees' leaves is essential to being compliant with PFML’s statutory and regulatory requirements and ensuring that your employees get the amount and duration of leave for which they are eligible. Your organization must have a registered Leave Administrator on file with DFML.
What happens if my employee gets paid too much?
Employers are responsible for managing any payments made to an employee that exceeds the employee’s IAWW. DFML is not involved in the repayment process for top off overages. This process is the responsibility of the employer and employee.
Can employers set smallest increment of leave use policies related to the use of paid leave under an employer policy?
The PFML law does not prohibit employers from establishing smallest increments of leave that may be taken under an employer policy, provided such policies do not discriminate against an employee for exercising a right under the PFML program. The DFML has set its own smallest increment of time for which intermittent PFML benefits will be paid by the DFML at 15 minutes.
Does this impact employees whose leave started before November 1, 2023?
Ongoing PFML leaves that were filed before November 1, 2023, are not eligible to be topped off under these new rules.
What if an employee files an application on or after November 1, 2023, for retroactive leave dates?
As long as the application is filed on or after November 1, 2023, applications filed retroactively for a leave that began before November 1, 2023, are eligible to be topped off.
What if an employee files an application for retroactive benefits where they have already used PTO for full salary replacement?
The employee may still file an application for PFML benefits. If the employee receives combined employer provided benefits and PFML benefits greater than the employee's IAWW, the employer is responsible for managing any payments made to the employee that exceeds the employee’s IAWW. Employees are responsible for working with their employer to make sure that the combined weekly sum of PTO and PFML benefits does not exceed an employee’s IAWW.
As an employer do I have to report back to DFML how much the employee used for topping off?
No, it is up to employers to oversee the use of topping off and manage employee time while on PFML. Management of topping off benefits is between you and your employees. It is important to let them know what is offered and when, so employees do not report these benefits on their application for benefits.
What should employers tell employees about their top off options?
Employers should tell their employees that under the PFML law, they have the option to use their available accrued PTO to supplement their PFML benefits while on leave, up to the employee’s IAWW.
If my organization has a private plan exemption for family leave and/or medical leave, does my private plan need to allow for top offs?
Yes. Private plans must provide at least the same if not more benefits and protections as does the PFML program. With the implementation of the top off amendment, private plans may need to reevaluate their policies to accommodate employee top offs.