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Massachusetts: Department Clarifies Coverage for Non-Immigrant Workers under the Paid Family and Medical Leave Law

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

August 21, 2019

The implementation of the Paid Family and Medical Leave (PFML) law in Massachusetts is fast approaching. As the October 1, 2019 contribution deadline is nearing, the Department of Family and Medical Leave (DFML) is publishing clarifying information on its website. Recently, the DFML has identified those visa holders who are covered under the new PFML law and those who are not.

According to the DFML, seasonal agricultural workers with H-2A visas are not covered individuals under the PFML law and are exempt from making PFML contributions. As a result, employers do not have to withhold or remit PFML contributions from H-2A visa holders. This exception applies only to those with an H-2A visa. All other temporary foreign worker visa holders are covered, including H-1B, H-2B, O-1, O-2, etc., assuming that the individual meets all other criteria to be covered by the law.   

The DFML has also answered whether international student and foreign exchange program visa holders are exempt from the law. International student and foreign exchange program visa holders, including F-1 OPT, J-1, and J-2, are covered individuals (assuming all other criteria are met) under the PFML law. Therefore, employers are required to withhold and remit PFML contributions on behalf of those holding those visas beginning on October 1.

Remember, regardless of whether you are required to withhold for non-immigrant workers, they all must be counted when reporting total workforce numbers.  As a Massachusetts employer, your responsibility to make contributions under the PFML law depends on the makeup of your workforce so it is very important that you properly report the size and makeup of your workforce to the DFML.

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