Who's a covered individual under the PFML law?

Your Massachusetts workforce determines your responsibilities as an employer for making contributions under the Paid Family and Medical Leave (PFML) law. For the most part, PFML follows the unemployment statute (M.G.L. c. 151A) for determining what qualifies as employment and excluded employment.

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Determining your total workforce

As a Massachusetts employer, your responsibility for making contributions under the Paid Family and Medical Leave (PFML) law (M.G.L. c. 175M) depends on the makeup of your workforce. To make sure you're correctly assessed for contributions, it's important that you properly report the size and makeup of your Massachusetts workforce to the Department of Family and Medical Leave.

Your total workforce includes:

  • Massachusetts W-2 employees (full-time, part-time, or seasonal). Generally, DFML follows the same eligibility criteria as the unemployment insurance program in Massachusetts. If you are required to report a W-2 employee’s wages to the Department of Unemployment Assistance (DUA), those employees should be counted. These employees don't need to reside in Massachusetts to be covered.
  • Massachusetts 1099-MISC contractors. Generally, an MA 1099-MISC contractor is an individual or sole proprietor who resides and performs services in Massachusetts for whom you are required to report payment for services on IRS Form 1099-MISC. These individuals must be performing services in your trade or business or be regularly engaged to perform services for you.

You'll always report your total workforce numbers, but you're only responsible for submitting contributions on behalf of members of your workforce who are covered individuals for the purposes of the PFML law. For help calculating your workforce and contributions, use our contributions calculator

Each quarter, you'll be required to remit the required employee contributions for all covered individuals in your MA workforce. You may deduct all or part of the required employee contribution from amounts you pay to covered individuals. If your MA workforce has fewer than 25 covered individuals, you are not responsible for paying the employer's contribution.

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Counting MA 1099-MISC contractors as covered individuals

In order for a 1099-MISC worker to be considered part of your MA workforce count, the 1099-MISC contractor MUST:

  1. Perform services as an individual entity.
  2. Live in Massachusetts.
  3. Perform services in Massachusetts.

The 1099-MISC worker MUST NOT:

  • Be an independent contractor as defined by the Massachusetts unemployment statute, (M.G.L. c.151A), which is a guiding authority for the PFML program in many respects. 

The Massachusetts unemployment statute defines independent contractors as workers who meet this three-part test.

If a worker meets the criteria provided above and you have determined that the individual entity is not an independent contractor under the three-part test, then you should count them as a member of your Massachusetts workforce.

Massachusetts 1099-MISC workers only count toward your total number of covered individuals for purposes of contributions and reporting only if they make up more than 50% of your total Massachusetts workforce (MA W-2 employees and MA 1099-MISC workers combined). Otherwise, an employer is not required to contribute or report on 1099-MISC workers.

Note that only services provided that would otherwise require the issuance of a 1099-MISC are subject to contributions. For a full description of when a 1099-MISC is required, please refer to the IRS guidance on reporting payments to independent contractors.

For the purposes of counting your workforce, professional corporations (PCs), Limited Liability Companies (LLCs), Sole Member LLCs, partnerships, and corporations are not individuals and should not be included in your count, even if you make payments to them by 1099-MISC. Those types of business entities should not have withholdings taken by an employer.

Counting visa program workers as covered individuals

Foreign worker program visas

H-2A visa holders (seasonal agricultural workers) are exempt from making PFML contributions and are not considered covered individuals. Therefore, you’re not required to withhold or remit PFML contributions from your H-2A visa holders.

All other temporary foreign worker visa programs (e.g. H-1B, H-2B, O-1, O-2, etc.) are considered covered individuals (assuming they meet all other criteria above) and you’re required to withhold and remit PFML contributions on their behalf.

International student and foreign exchange program visas

International student and foreign exchange program visa holders (e.g. F-1, OPT, J-1, and J-2) are considered covered individuals (assuming they meet all other criteria above) and you’re required to withhold and remit PFML contributions on their behalf when these employees are permitted to work in the United States.

Partial list of excluded employment

Certain types of employment that are excluded under section 6 of the unemployment statute are also excluded from the PFML law, including: 

  • Services performed for a son, daughter, or spouse 
  • If under 18, services performed for one’s father or mother 
  • Services performed by inmates of penal institutions 
  • Independent contractors as defined by this three-part test
  • Employment in the railroad industry 
  • Services provided by real estate brokers/salespeople and insurance agents/solicitors in commission only jobs
  • Newspaper sales and delivery by persons under 18 
  • Employment by churches and certain religious organizations 
  • Services of work-study students, student nurses and interns, work trainee programs administered by non-profit or public institutions

Please review Section 6 of MGL c. 151A for a complete list of excluded employment.

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