Massachusetts: Covered by MA Paid Family and Medical Leave? Don’t Forgot about Federal FMLA

By Amelia J. Holstrom - Skoler Abbott P.C.

March 10, 2026

Massachusetts’ Paid Family and Medical Leave (PFML) law became effective on July 1, 2021.  Under that law, each benefit year, eligible employees are entitled to take up to 12 workweeks of family leave, including bonding leave following the birth, adoption, or placement of a child and leave to care for a family member with a serious health condition, and up to 20 workweeks of medical leave due to their own serious health condition. Employees can also take leave in other situations related to military leave.  Employees can take an aggregate total of 26 workweeks of PFML in a benefit year, which is far more time than the 12 workweeks of leave offered under the federal Family and Medical Leave Act (FMLA).

Massachusetts PFML runs concurrently with other leaves, including FMLA leave, when leave is taken for a qualifying reason under those leave laws. What employers sometimes forget, however, is that they must still comply with the FMLA regulations, including the designation rules.

FMLA compliance timelines and technical violations

Under the federal FMLA, employers must comply with certain deadlines and notice requirements.  Specifically, they must provide employees with a copy of the Notice of Eligibility and Rights & Responsibilities within five (5) business days of the notification of the employee’s need for leave. When an employee is FMLA eligible, with that notice, employers must notify employees of the documentation they need to assess their need for leave, often requiring them to enclose the applicable Certification.  An employee then has 15 calendar days to return the appropriate documentation.  Thereafter, the employer has five (5) business days to send a Designation Notice to the employee regarding the leave.   All such notices can be found on the Department of Labor’s website.

Additionally, the FMLA regulations indicate that “[o]nce the employer has acquired knowledge [from the employee or their spokesperson] that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee.” The employer must notify the employee in writing utilizing the designation procedures (Designation Notice) under the FMLA to let the employee know if they are eligible for  FMLA.  Accordingly, when an employee provides a PFML certification  from a health care provider that makes clear that the leave is also FMLA eligible, the employer needs to promptly send the FMLA Designation Notice to the employee.

Many employers may see the FMLA notification process as redundant, especially when someone has completed and returned a certification requesting PFML and been approved for PFML.  Still, complying with the PFML is not enough. Employers must also comply with the FMLA notification procedures.  Employers who forget to comply with the FMLA procedures or make a conscious decision not to face significant risks that are often not immediately evident.

Risks associated with failure to designate the leave as FMLA covered

Employers who do not comply with the notice requirements under the federal FMLA can be subject to fines and penalties imposed by the Department of Labor, even if the employee was permitted to take the 12 workweeks of leave and suffers no actual harm (i.e. lost wages, denial of leave).

More importantly, however, failure to designate an FMLA-qualifying leave as FMLA could harm the employer in the future too. If an employer does not designate the time as FMLA, there is risk that the employer has to provide the employee with another 12 workweeks of FMLA because leave time can only be retroactively designated as FMLA when “the employer’s failure to timely designate leave does not cause harm or injury to the employee” or when the employer and the employee mutually agree to have the leave retroactively designated as FMLA time.

Consider this scenario: an employee is hired on January 1.  The employee, who is not yet FMLA eligible because she has not worked for the company for twelve months, takes PFML for her own serious health condition for 14 workweeks from August until November.   A few months later, in January, the employee takes 12 weeks of PFML to care for her mother.  The employer forgets to designate the 12 weeks of family leave as FMLA, even though the employee is now eligible.  Thereafter, later in the same year, the employee informs the employer that she is having a knee replacement, and she needs to utilize 12 workweeks of FMLA.  The employer denies the leave and informs the employee that she already utilized 12 workweeks of FMLA from January to March when she took leave to care for her mother.  The employee disagrees that she already used her FMLA time and says she relied on having that time when determining when to schedule her surgery.

In this instance, the employer is retroactively designating the prior leave as FMLA and it is causing harm to the employee who relied on having the time available.  Additionally, if she knew she was using her 12 weeks of FMLA to take care of her mother, she may have found someone else to do so. That way, she could have saved her FMLA time to use for her own surgery.  Because the employer’s failure to notify the employee that the FMLA time she took to care for her mother was being counted against her 12-week FMLA allotment prejudiced the employee, the employer likely would have to afford the employee an additional 12 weeks of FMLA protected time.

What should you do?

FMLA-covered employees must follow the FMLA process every time and be sure to designate qualifying FMLA leave as such, whenever an employee is FMLA-eligible.  If you are an employer that uses a third-party administrator, make sure they are taking all the steps necessary to ensure FMLA compliance. 

Additionally, employers should make sure that their PFML and FMLA policies indicate that PFML and FMLA leave run concurrently whenever the person is eligible for both leaves to put employees on notice of this policy.

Employers with questions should speak with their labor and employment counsel.

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