458 CMR 2.02
Definitions
For the purposes of 458 CMR 2.00, the following words shall have the following meanings,
unless the context clearly requires otherwise. Terms defined under the federal Family Medical
Leave Act of 1993, and its implementing regulations (28 CFR § 825) shall be treated as
persuasive, supplementary authority when those definitions are not facially inconsistent with the
terms adopted in M.G.L. c. 175M, and 458 CMR 2.00.
Accrued Paid Leave. Leave earned by or otherwise provided to a covered individual pursuant
to a benefit plan or policy offered by an employer or covered business entity including, but not
limited to, sick leave, annual leave, vacation leave, personal leave, compensatory leave or paid
time off. Accrued paid leave shall not include:
(a) disability policy or program of an employer or covered business entity; or
(b) paid family, or medical leave policy of an employer or covered business entity.
Active Duty. For the purposes ofadministeringpaid leave underM.G.L. c. 175M, and458 CMR
2.00, Active Duty means full-time duty in the active military service of the United States and
full-time National Guard duty, and deployed to a foreign country.
Adoption. Legally and permanently assuming the responsibility of raising a child as one's own.
The source of an adopted child (i.e., whether from a licensed placement agency or otherwise) is
not a factor in determining eligibility for leave.
Application for Benefits. A request for family or medical leave benefits pursuant to 458 CMR
2.08.
Average Weekly Wage. Has the same meaning as provided in M.G.L. c. 151A, § l(w);
provided, however, that Average Weekly Wage shall be calculated using earnings from the base
period; and provided further, that in the case of a self-employed individual, Average Weekly
Wage shall mean 1/26 of the total earnings of the self-employed individual from the two highest
quarters of the 12 months preceding such individual's application for benefits under
M.G.L. c. 175M. If an individual has multiple employers, the Average Weekly Wage will be
calculated for each employer or covered business entity separately.
Average Working Week. The average number of hours worked from the two highest quarters
of the 12 months preceding such individual's application for benefits under M.G.L. c. 175M.
Base Period. The last four completed calendar quarters within the previous five calendar
quarters immediately preceding the date an application for benefits is filed with the Department
for a qualified period of paid family or medical leave. A completed calendar quarter is one for
which an employment and wage detail report has been or should have been filed, pursuant to
458 CMR 2.04(1) and (2).
Benefit Year. The period of 52 consecutive weeks beginning on the Sunday immediately
preceding the first day that job-protected leave under M.G.L. c. 175M commences for the
covered individual.
Calendar Year. A 12-month period starting with January 1 st and ending with December 31st.
Child. A biological, adopted or foster child, a stepchild or legal ward, a child to whom the
covered individual stands in loco parentis, or a person to whom the covered individual stood in
loco parentis when the person was a minor child.
Complete Application. An application for benefits that contains all of the required information
from the covered individual pursuant to 458 CMR 2.08(2) and all of the information required
from the employer pursuant to 458 CMR 2.08(6). The application for benefits shall be deemed
complete when the Department receives the information required under 458 CMR 2.08(6) or ten
business days after the Department requests the information required under 458 CMR 2.08(6)
from the employer, whichever is sooner.
Continuing Treatment by a Health Care Provider. Includes any one or more of the following:
(a) Incapacity and Treatment. A period of incapacity of more than three consecutive, full
calendar days, and any subsequent treatment or period of incapacity relating to the same
condition, that also involves:
1. Treatment two or more times, within 30 calendar days of the first day of incapacity,
unless extenuating circumstances exist, by a health care provider, by a nurse under direct
supervision of a health care provider, or by a provider of health care services (e.g.,
physical therapist) under orders of, or on referral by, a health care provider; or
2. Treatment by a health care provider on at least one occasion, which results in a
regimen of continuing treatment under the supervision of the health care provider.
Treatment includes examination to determine if there is a serious health condition.
Treatment does not include routine physical examinations, eye examinations, or
dental examinations. A regimen of continuing treatment includes a course of prescription
medication or therapy requiring specialized equipment to resolve or alleviate the health
condition.
3. The requirement for treatment by a health care provider means an in-person visit or
telehealth visit to a health care provider. The first (or only) in-person or telehealth visit
must take place within seven calendar days of the first day of incapacity
4. Whether additional treatment visits or a regimen of continuing treatment is necessary
within the 30-calendar day period shall be determined by the health care provider.
5. The term extenuating circumstances means circumstances beyond the covered
individual's control that prevent the follow-up visit from occurring as planned by the
health care provider. Whether a given set of circumstances are extenuating depends on
the facts. For example, extenuating circumstances exist if a health care provider
determines that a second in-person visit is needed within the 30-calendar day period, but
the health care provider does not have any available appointments during that time
period.
(b) Pregnancy or Prenatal Care. Any period of incapacity due to pregnancy, or for prenatal
care.
(c) Chronic Conditions. Any period of incapacity or treatment for such incapacity due to
a chronic serious health condition. A chronic serious health condition is one which:
1. Requires periodic visits (defined as at least twice per calendar year) for treatment by
a health care provider, or by a nurse under direct supervision of a health care provider;
2. Continues over an extended period of time (including recurring episodes of a single
underlying condition); and
3. May cause episodic rather than a continuing period of incapacity (e.g., asthma,
diabetes, epilepsy, etc.).
(d) Permanent or Long-term Conditions. A period of incapacity which is permanent or
long-term due to a condition for which treatment may not be effective. The covered
individual or family member must be under the continuing supervision of, but need not be
receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions Requiring Multiple Treatments. Any period of absence to receive multiple
treatments (including any period of recovery therefrom) by a health care provider or by a
provider of health care services under orders of, or on referral by, a health care provider, for:
1. Restorative surgery after an accident or other injury; or
2. A condition that would likely result in a period of incapacity of more than three
consecutive, full calendar days in the absence of medical intervention or treatment, such
as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under 458 CMR 2.02: Continuing Treatment by a
Health Care Provider(b) or (c) qualify for leave even though the covered individual or the
covered family member does not receive treatment from a health care provider during the
absence, and even if the absence does not last more than three consecutive, full calendar
days.
(g) Cosmetic treatments are not serious health conditions, unless inpatient hospital care is
required or unless complications develop.
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Continuing Treatment by a Health Care Provider. Includes any one or more of the following:
(a) Incapacity and Treatment. A period of incapacity of more than three consecutive, full
calendar days, and any subsequent treatment or period of incapacity relating to the same
condition, that also involves:
1. Treatment two or more times, within 30 calendar days of the first day of incapacity,
unless extenuating circumstances exist, by a health care provider, by a nurse under direct
supervision of a health care provider, or by a provider of health care services (e.g.,
physical therapist) under orders of, or on referral by, a health care provider; or
2. Treatment by a health care provider on at least one occasion, which results in a
regimen of continuing treatment under the supervision of the health care provider.
Treatment includes examination to determine if there is a serious health condition.
Treatment does not include routine physical examinations, eye examinations, or
dental examinations. A regimen of continuing treatment includes a course of prescription
medication or therapy requiring specialized equipment to resolve or alleviate the health
condition.
3. The requirement for treatment by a health care provider means an in-person visit or
telehealth visit to a health care provider. The first (or only) in-person or telehealth visit
must take place within seven calendar days of the first day of incapacity
4. Whether additional treatment visits or a regimen of continuing treatment is necessary
within the 30-calendar day period shall be determined by the health care provider.
5.
The term extenuating circumstances means circumstances beyond the covered
individual's control that prevent the follow-up visit from occurring as planned by the
health care provider. Whether a given set of circumstances are extenuating depends on
the facts. For example, extenuating circumstances exist if a health care provider
determines that a second in-person visit is needed within the 30-calendar day period, but
the health care provider does not have any available appointments during that time
period.
(b) Pregnancy or Prenatal Care. Any period of incapacity due to pregnancy, or for prenatal
care.
(c) Chronic Conditions. Any period of incapacity or treatment for such incapacity due to
a chronic serious health condition. A chronic serious health condition is one which:
1. Requires periodic visits (defined as at least twice per calendar year) for treatment by
a health care provider, or by a nurse under direct supervision of a health care provider;
2. Continues over an extended period of time (including recurring episodes of a single
underlying condition); and
3.
May cause episodic rather than a continuing period of incapacity (e.g., asthma,
diabetes, epilepsy, etc.).
(d) Permanent or Long-term Conditions. A period of incapacity which is permanent or
long-term due to a condition for which treatment may not be effective. The covered
individual or family member must be under the continuing supervision of, but need not be
receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions Requiring Multiple Treatments. Any period of absence to receive multiple
treatments (including any period of recovery therefrom) by a health care provider or by a
provider of health care services under orders of, or on referral by, a health care provider, for:
1. Restorative surgery after an accident or other injury; or
2. A condition that would likely result in a period of incapacity of more than three
consecutive, full calendar days in the absence of medical intervention or treatment, such
as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under 458 CMR 2.02: Continuing Treatment by a
Health Care Provider(b) or (c) qualify for leave even though the covered individual or the
covered family member does not receive treatment from a health care provider during the
absence, and even if the absence does not last more than three consecutive, full calendar
days.
(g) Cosmetic treatments are not serious health conditions, unless inpatient hospital care is
required or unless complications develop.
Contributions. The payments made by an employer, a covered business entity, or a covered
individual to the Family and Employment Security Trust Fund, as required by M.G.L. c. 175M.
Covered Business Entity. A business or trade that contracts with self-employed individuals for
services and is required to report the payment for services to such individuals on IRS Form
1099-MISC for more than 50% of its workforce.
Covered Contract Worker. A self-employed individual:
(a) for whom an employer or covered business entity is required to report payment for
services on IRS Form 1099-MISC;
(b) for whom an employer or covered business entity is required to remit contributions to
the Family and Employment Security Trust Fund pursuant to the requirements of
M.G.L. c. 175M, § 6;
(c) who performs services as an individual in Massachusetts;
(d) who resides in Massachusetts; and
(e) who is not classified as an independent contractor pursuant to M.G.L. c. 151A, § 2.
Covered Individual, either:
(a) an employee who meets the financial eligibility requirements of M.G.L. c. 151A,
§ 24(a); provided, however, that all such employment shall have been with an employer in
the Commonwealth;
(b) a self-employed individual:
1. who has elected coverage under M.G.L. c. 175M, § (2)(j);
2. whose reported earnings to the Massachusetts Department of Revenue from self-
employment meet the financial eligibility requirements of M.G.L. c. 151A, § 24(a) as if
the individual were an employee; and
3. who has made contributions as required by M.G.L. c. 175M, § 6, for at least two of
the previous four calendar quarters;
(c) a covered contract worker:
1. for whom at least one employer or covered business entity is required to remit
contributions to the Family and Employment Security Trust Fund pursuant to
M.G.L. c. 175M, § 6; and
2. whose payments from such employer or covered business entity satisfy the financial
eligibility requirements of M.G.L. c. 151A, § 24(a) as if the covered contract worker
were an employee; or
(d) a former employee who has:
1. met the financial eligibility requirements of M.G.L. c. 151A, § 24(a) at the time of
the former employee's separation from employment; provided, however, that all such
employment shall have been with an employer in the Commonwealth; and
2. been separated from employment for not more than 26 weeks at the start of the
former employee's family or medical leave; or
(e) a personal care attendant, as defined in M.G.L. c. 118E, § 70, whose wages from
working as a personal care attendant meet the financial eligibility requirements of
M.G.L. c. 151A, § 24(a); or
(f) a family child care provider, as defined in M.G.L. c.15D, § 17(a), whose payments from
working as a family child care provider meet the financial eligibility requirements of
M.G.L. c. 151A, § 24(a).
Covered Servicemember, either:
(a) a member of the Armed Forces, as defined in M.G.L. c. 4, § 7, including a member of
the National Guard or Reserves, who is:
1. undergoing medical treatment, recuperation or therapy;
2. otherwise in outpatient status; or
3. is otherwise on the temporary disability retired list for a serious injury or illness that
was incurred by the member in the line of duty on active duty in the Armed Forces, or
a serious injury or illness that existed before the beginning of the member's active duty
and was aggravated by service in the line of duty on active duty in the Armed Forces; or
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458 CMR: DEPARTMENT OFFAMILY AND MEDICAL LEAVE
Contributions. The payments made by an employer, a covered business entity, or a covered
individual to the Family and Employment Security Trust Fund, as required by M.G.L. c. 175M.
Covered Business Entity. A business or trade that contracts with self-employed individuals for
services and is required to report the payment for services to such individuals on IRS Form
1099-MISC for more than 50% of its workforce.
Covered Contract Worker. A self-employed individual:
(a) for whom an employer or covered business entity is required to report payment for
services on IRS Form 1099-MISC;
(b) for whom an employer or covered business entity is required to remit contributions to
the Family and Employment Security Trust Fund pursuant to the requirements of
M.G.L. c. 175M, § 6;
(c) who performs services as an individual in Massachusetts;
( d) who resides in Massachusetts; and
(e) who is not classified as an independent contractor pursuant to M.G.L. c. 151A, § 2.
Covered Individual, either:
(a)
an employee who meets the financial eligibility requirements of M.G.L. c. 151A,
§ 24(a); provided, however, that all such employment shall have been with an employer in
the Commonwealth;
(b) a self-employed individual:
1. who has elected coverage under M.G.L. c. 175M, § (2)(i);
2. whose reported earnings to the Massachusetts Department of Revenue from self
employment meet the financial eligibility requirements ofM.G.L. c. 15lA, § 24(a) as if
the individual were an employee; and
3. who has made contributions as required by M.G.L. c. 175M, § 6, for at least two of
the previous four calendar quarters;
(c) a covered contract worker:
1. for whom at least one employer or covered business entity is required to remit
contributions to the Family and Employment Security Trust Fund pursuant to
M.G.L. c. 175M, § 6; and
2. whose payments from such employer or covered business entity satisfy the financial
eligibility requirements of M. G.L. c. 151 A, § 24(a) as if the covered contract worker
were an employee; or
(d) a former employee who has:
1. met the financial eligibility requirements ofM.G.L. c. 151A, § 24(a) at the time of
the former employee's separation from employment; provided, however, that all such
employment shall have been with an employer in the Commonwealth; and
2. been separated from employment for not more than 26 weeks at the start of the
former employee's family or medical leave; or
(e)
a personal care attendant, as defined in M.G.L. c. 118E, § 70, whose wages from
working as a personal care attendant meet the financial eligibility requirements of
M.G.L. c. 151A, § 24(a); or
(f) a family child care provider, as defined in M.G.L. c.15D, § 17(a), whose payments from
working as a family child care provider meet the financial eligibility requirements of
M.G.L. c. 151A, § 24(a).
Covered Servicemember, either:
(a) a member of the Armed Forces, as defined in M.G.L. c. 4, § 7, including a member of
the National Guard or Reserves, who is:
1. undergoing medical treatment, recuperation or therapy;
2. otherwise in outpatient status; or
3. is otherwise on the temporary disability retired list for a serious injury or illness that
was incurred by the member in the line of duty on active duty in the Armed Forces, or
a serious injury or illness that existed before the beginning of the member's active duty
and was aggravated by service in the line of duty on active duty in the Armed Forces; or
(b) a former member of the Armed Forces, including a former member of the National
Guard or Reserves, who is undergoing medical treatment, recuperation or therapy for a
serious injury or illness that was incurred by the member in line of duty on active duty in the
Armed Forces, or a serious injury or illness that existed before the beginning of the member's
active duty and was aggravated by service in line of duty on active duty in the Armed Forces
and manifested before or after the member was discharged or released from service.
Department. The Department of Family and Medical Leave established in M.G.L. c. 175M, § 8.
Director. The Director of the Department of Family and Medical Leave.
Domestic Partner. A person 18 years of age or older who:
(a) is dependent upon the covered individual for support as shown by either unilateral
dependence or mutual interdependence that is evidenced by a nexus of factors including, but
not limited to:
1. common ownership of real or personal property;
2. common householding;
3. children in common;
4. signs of intent to marry;
5. shared budgeting; and
6. the length of the personal relationship with the covered individual; or
(b) has registered as the domestic partner of the covered individual with any registry of
domestic partnerships maintained by the employer of either party, or in any state, county,
city, town or village in the United States.
2.02: continued
458 CMR: DEPARTMENT OFFAMILY AND MEDICAL LEAVE
(b) a former member of the Armed Forces, including a former member of the National
Guard or Reserves, who is undergoing medical treatment, recuperation or therapy for a
serious injury or illness that was incurred by the member in line of duty on active duty in the
Armed Forces, or a serious injury or illness that existed before the beginning of the member's
active duty and was aggravated by service in line of duty on active duty in the Armed Forces
and manifested before or after the member was discharged or released from service.
Department. The Department of Family and Medical Leave established in M.G.L. c. 175M, § 8.
Director. The Director of the Department of Family and Medical Leave.
Domestic Partner. A person 18 years of age or older who:
(a)
is dependent upon the covered individual for support as shown by either unilateral
dependence or mutual interdependence that is evidenced by a nexus of factors including, but
not limited to:
1. common ownership of real or personal property;
2. common householding;
3. children in common;
4. signs of intent to marry;
5. shared budgeting; and
6. the length of the personal relationship with the covered individual; or
(b) has registered as the domestic partner of the covered individual with any registry of
domestic partnerships maintained by the employer of either party, or in any state, county,
city, town or village in the United States.
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458 CMR: DEPARTMENT OFFAMILY AND MEDICAL LEAVE
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Earnings from Self-employment or Income from Self-Employment. Shall have the same
meaning as "net earnings from self-employment", as defined in the Internal Revenue Code at
26 U.S.C. § 1402(a), in effect for the taxable year, and the implementing regulations at 26 CFR
§ 1.1402(a).
Employee. Shall have the same meaning as provided in M.G.L. c. 151A, § 1(h); provided,
however, that notwithstanding M.G.L. c. 151A, § 1(h); or any other special or general law to the
contrary and solely for the purposes of M.G.L. c. 175M, § 6 and the notice provisions set forth
in M.G.L. c. 175M, § 4(a) and (b), Employee shall include:
(a) a family child care provider, as defined in M.G.L. c. 15D, § 17(a); and
(b) a personal care attendant, as defined in M.G.L. c. 118E, § 70.
Employer. Shall have the same meaning as provided in M.G.L. c. 151A, § (1)(i); provided,
however, that
(a) an individual employer shall be determined by the Federal Employer Identification
Number;
(b) the Department of Early Education and Care shall be deemed the employer of family
child care providers, as defined in M.G.L. c. 15D, § 17(a), solely for the purposes of
M.G.L. c. 175M, § 6 the notice provisions set forth in M.G.L. c. 175M, § 4(a) and (b), and
§ 8(d);
(c) any employer not subject to M.G.L. c. 175M may become a covered employer under
M.G.L. c. 175M by notifying the Department of Family and Medical Leave and completing
the procedure established by the Department;
(d) a municipality, district, political subdivision or its instrumentalities shall not be subject
to M.G.L. c. 175M, unless it adopts M.G.L. c. 175M by majority vote of its authorized local
legislative body or governing body and otherwise as provided by M.G.L. c. 175M, § 10; and
(e) the PCA Quality Home Care Workforce Council established in M.G.L. c. 118E, § 71
shall be the employer of personal care attendants, as defined in M.G.L. c. 118E, § 70(a),
solely for the purposes of M.G.L. c. 175M, § 6, and consumers, as defined in
M.G.L. c. 118E, § 70, shall be considered the employers of personal care attendants solely
for the purposes of the notice requirements set forth in M.G.L. c. 175M, § 4(a) and (b), and
§ 8(d);
(f) Notwithstanding any general or special law to the contrary, for the purposes of
M.G.L. c. 175M, § 6, the PCA Quality Home Care Workforce Council established in
M.G.L. c. 118E, § 71 shall be the employer of personal care attendants, as defined in
M.G.L. c. 118E, § 70, and the Department of Early Education and Care shall be the employer
of family child care providers, as defined in M.G.L. c. 15D, § 17(a).
Employment. Shall have the same meaning as provided by M.G.L. c. 151A, § 1(k); provided,
further, that employment shall not include any service not included in "employment" pursuant
to M.G.L. c. 151A, § 6A.
Employment Benefits. All benefits provided or made available to covered individuals by an
employer or covered business entity, if any, including, but not limited to, group life insurance,
health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits
and pensions.
Extended Illness Leave Bank. A voluntary program where covered individuals may donate
accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason
under M.G.L. c. 175M.
Family Leave. Leave taken to care for a family member with a serious health condition, for a
parent to bond with the parent's child during the first 12 months after the child's birth, adoption,
or foster care placement, to care for a family member who is a covered service member, or
because of a qualifying exigency arising out of the fact that a family member is on active duty
or has been notified of an impending call or order to active duty in the Armed Forces.
2.02: continued
Earnings from Self-employment or Income from Self-Employment. Shall have the same
meaning as "net earnings from self-employment", as defined in the Internal Revenue Code at
26 U.S.C. § 1402(a), in effect for the taxable year, and the implementing regulations at 26 CFR
§ 1.1402(a).
Employee. Shall have the same meaning as provided in M.G.L. c. 151A, § l(h); provided,
however, that notwithstanding M.G.L. c. 15lA, § l(h); or any other special or general law to the
contrary and solely for the purposes ofM.G.L. c. 175M, § 6 and the notice provisions set forth
in M.G.L. c. 175M, § 4(a) and (b), Employee shall include:
(a) a family child care provider, as defined in M.G.L. c. 15D, § 17(a); and
(b) a personal care attendant, as defined in M.G.L. c. 118E, § 70.
Employer. Shall have the same meaning as provided in M.G.L. c. 151A, § (l)(i); provided,
however, that
(a) an individual employer shall be determined by the Federal Employer Identification
Number;
(b) the Department of Early Education and Care shall be deemed the employer of family
child care providers, as defined in M.G.L. c. 15D, § 17(a), solely for the purposes of
M.G.L. c. 175M, § 6 the notice provisions set forth in M.G.L. c. 175M, § 4(a) and (b), and
§ 8(d);
(c) any employer not subject to M.G.L. c. 175M may become a covered employer under
M.G.L. c. 175M by notifying the Department of Family and Medical Leave and completing
the procedure established by the Department;
(d) a municipality, district, political subdivision or its instrumentalities shall not be subject
to M.G.L. c. 175M, unless it adopts M.G.L. c. 175M by majority vote of its authorized local
legislative body or governing body and otherwise as provided by M.G.L. c. 175M, § 10; and
(e) the PCA Quality Home Care Workforce Council established in M.G.L. c. 118E, § 71
shall be the employer of personal care attendants, as defined in M.G.L. c. 118E, § 70(a),
solely for the purposes of M.G.L. c. 175M, § 6, and consumers, as defined in
M.G.L. c. 118E, § 70, shall be considered the employers of personal care attendants solely
for the purposes of the notice requirements set forth in M.G.L. c. 175M, § 4(a) and (b), and
§ 8(d);
(f)
Notwithstanding any general or special law to the contrary, for the purposes of
M.G.L. c. 175M, § 6, the PCA Quality Home Care Workforce Council established in
M.G.L. c. 118E, § 71 shall be the employer of personal care attendants, as defined in
M.G.L. c. 118E, § 70, and the Department ofEarly Education and Care shall be the employer
of family child care providers, as defined in M.G.L. c. 15D, § 17(a).
Employment. Shall have the same meaning as provided by M.G.L. c. 151A, § l(k); provided,
further, that employment shall not include any service not included in "employment" pursuant
to M.G.L. c. 151A, § 6A.
Employment Benefits. All benefits provided or made available to covered individuals by an
employer or covered business entity, if any, including, but not limited to, group life insurance,
health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits
and pensions.
Extended Illness Leave Bank. A voluntary program where covered individuals may donate
accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason
under M.G.L. c. 175M.
Family Leave. Leave taken to care for a family member with a serious health condition, for a
parent to bond with the parent's child during the first 12 months after the child's birth, adoption,
or foster care placement, to care for a family member who is a covered service member, or
because of a qualifying exigency arising out of the fact that a family member is on active duty
or has been notified of an impending call or order to active duty in the Armed Forces.
Family Leave Benefits. Wage replacement paid pursuant to M.G.L. c. 175M, § 3 and provided
in accordance with M.G.L. c. 175M, § 2, to a covered individual while the covered individual
is on family leave.
Family Member. The spouse, domestic partner, child, parent or parent of a spouse or domestic
partner of the covered individual; a person who stood in loco parentis to the covered individual
when the covered individual was a minor child; or a grandchild, grandparent or sibling of the
covered individual.
Financial Eligibility Test. A demonstration that, over the 12 months preceding an individual's
application for benefits with the Department, the individual has received total wages as an
employee or payments for service as a covered contract worker from Massachusetts employers
or Massachusetts covered business entities that in the aggregate equal or exceed 30 times the
individual's weekly benefit amount as determined under 458 CMR 2.12, and that in the aggregate
are not less than the dollar amount calculated annually by the Massachusetts Department of
Unemployment Assistance pursuant to M.G.L. c. 151A, § 24(a). Wages received from multiple
employers or covered business entities within the base period can be aggregated to determine
financial eligibility for leave.
Foster Care. 24-hour care for children in substitution for and away from their parents or
guardian. Such placement is made by or with the agreement of Massachusetts or any other state,
commonwealth, or territory as a result of a voluntary agreement between the parent and guardian
that the child be removed from the home, or pursuant to a judicial determination of the necessity
for foster care, and involves agreement between Massachusetts or any other state,
commonwealth, or territory and foster family that the foster family will care for the child.
Although foster care may be with relatives of the child, State action is involved in the removal
of the child from parental custody.
Former Member of the Armed Forces. An individual who was a member of the Armed Forces,
including a member of the National Guard or Reserves, and was discharged or released at any
time during the five-year period prior to the first date the covered individual completes an
application for benefits to care for the former member of the Armed Forces.
Grandparent. A parent of the covered individual's parents.
Good Cause. A demonstration by a party that a failure to comply with a requirement of
M.G.L. c. 175M, and 458 CMR 2.00 was due to circumstances beyond the party's control.
Health Care Provider. An individual licensed by the state, commonwealth, or territory in which
the individual practices to practice medicine, surgery, dentistry, chiropractic, podiatry, midwifery
or osteopathy, and including the following:
(a) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice in by a State and performing within
the scope of their practice as defined under the law of that state, commonwealth, or territory;
(b) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants
who are authorized to practice under State law and who are performing within the scope of
their practice as defined under the law of that state, commonwealth or territory;
(c) Christian Science Practitioners listed with the First Church of Christ, Scientist in
Boston, Massachusetts.
(d) A health care provider listed above who practices in a country other than the United
States, who is authorized to practice in accordance with the law of that country, and who is
performing within the scope of the person's practice as defined under such law.
Incapacity. An inability to perform the functions of one's position, or where the covered
individual is a former employee, to perform the functions of one's most recent position or other
suitable employment as that term is defined under M.G.L. c. 151A, § 25(c), due to the serious
health condition, treatment therefor, or recovery therefrom.
2.02: continued
458 CMR: DEPARTMENT OFFAMILY AND MEDICAL LEAVE
Family Leave Benefits. Wage replacement paid pursuant to M.G.L. c. 175M, § 3 and provided
in accordance with M.G.L. c. 175M, § 2, to a covered individual while the covered individual
is on family leave.
Family Member. The spouse, domestic partner, child, parent or parent of a spouse or domestic
partner of the covered individual; a person who stood in loco parentis to the covered individual
when the covered individual was a minor child; or a grandchild, grandparent or sibling of the
covered individual.
Financial Eligibility Test. A demonstration that, over the 12 months preceding an individual's
application for benefits with the Department, the individual has received total wages as an
employee or payments for service as a covered contract worker from Massachusetts employers
or Massachusetts covered business entities that in the aggregate equal or exceed 30 times the
individual's weekly benefit amount as determined under 45 8 CMR 2 .12, and that in the aggregate
are not less than the dollar amount calculated annually by the Massachusetts Department of
Unemployment Assistance pursuant to M.G.L. c. 151A, § 24(a). Wages received from multiple
employers or covered business entities within the base period can be aggregated to determine
financial eligibility for leave.
Foster Care. 24-hour care for children in substitution for and away from their parents or
guardian. Such placement is made by or with the agreement of Massachusetts or any other state,
commonwealth, or territory as a result of a voluntary agreement between the parent and guardian
that the child be removed from the home, or pursuant to a judicial determination of the necessity
for foster care, and involves agreement between Massachusetts or any other state,
commonwealth, or territory and foster family that the foster family will care for the child.
Although foster care may be with relatives of the child, State action is involved in the removal
of the child from parental custody.
Former Member of the Armed Forces. An individual who was a member of the Armed Forces,
including a member of the National Guard or Reserves, and was discharged or released at any
time during the five-year period prior to the first date the covered individual completes an
application for benefits to care for the former member of the Armed Forces.
Grandparent. A parent of the covered individual's parents.
Good Cause. A demonstration by a party that a failure to comply with a requirement of
M.G.L. c. 175M, and 458 CMR 2.00 was due to circumstances beyond the party's control.
Health Care Provider. An individual licensed by the state, commonwealth, or territory in which
the individual practices to practice medicine, surgery, dentistry, chiropractic, podiatry, midwifery
or osteopathy, and including the following:
(a) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice in by a State and performing within
the scope of their practice as defined under the law of that state, commonwealth, or territory;
(b) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants
who are authorized to practice under State law and who are performing within the scope of
their practice as defined under the law of that state, commonwealth or territory;
(c)
Christian Science Practitioners listed with the First Church of Christ, Scientist in
Boston, Massachusetts.
(d) A health care provider listed above who practices in a country other than the United
States, who is authorized to practice in accordance with the law of that country, and who is
performing within the scope of the person's practice as defined under such law.
Incapacity. An inability to perform the functions of one's position, or where the covered
individual is a former employee, to perform the functions of one's most recent position or other
suitable employment as that term is defined under M.G.L. c. 151A, § 25(c), due to the serious
health condition, treatment therefor, or recovery therefrom.
Inpatient Care. An overnight stay in a hospital, hospice, or residential medical care facility,
including any period of incapacity, or any subsequent treatment in connection with such inpatient
care.
Intermittent Leave. Leave taken in separate periods of time due to a single qualifying reason,
rather than for one continuous period of time. Examples of intermittent leave include leave taken
on an occasional basis for medical appointments or leave taken several days at a time spread over
a period of months. Intermittent leave shall be taken in increments consistent with the
established policy of the employer or covered business entity uses to account for use of other
forms of leave; provided, however, that the Department will not pay in increments of less than
15 minutes. A covered individual shall not be permitted to apply for payment for benefits
associated with intermittent leave until they have eight hours of accumulated leave time, unless
more than 30 calendar days has lapsed since the initial taking of such leave.
Job Protected Leave. The period of time described in 458 CMR 2.16(1), immediately following
the first date on which an employee commences the taking of any type of leave that is associated
with a qualifying reason, regardless of whether an application for benefits has been submitted
to the Department in connection therewith or whether that leave is paid or unpaid. Employees
who do not file an application for benefits with the Department, but use any other type of leave,
including accrued paid leave or unpaid leave approved by an employer, leave under:
(a) temporary disability policy or program of an employer;
(b) paid family, or medical leave policy of an employer; or
(c) an Extended Illness Leave Bank provided by an employer, and taken for a qualifying
reason, will be entitled to job protected leave as of the date of commencing such leave and
that leave will run concurrently with the leave period provided in M.G.L. c. 175M.
Medical Leave. Leave taken by a covered individual due to a serious health condition.
Medical Leave Benefits. Wage replacement paid pursuant to M.G.L. c. 175M, § 3, and provided
in accordance with M.G.L. c. 175M, § 2, to a covered individual while the covered individual
is on medical leave.
Municipality, District, Political Subdivision or its Instrumentality. Shall include municipal
departments such as school departments, police departments, fire departments or public works
departments.
Parent. The biological, adoptive, step- or foster-mother or father of the covered individual.
Pay Period. The shortest pay period used by a business or trade for regular payments to any
group of covered individuals of the business or trade.
Private Plan Administrator. The third-party administrator of an employer's or covered business
entity's private paid family and/or medical leave plan.
Qualifying Earnings.
(a) wages paid to an employee;
(b) payments by covered business entities to covered contract workers; and
(c) earnings from self-employment on which a self-employed individual is making
contributions pursuant to 458 CMR 2.06.
Qualifying Exigency. A need arising out of a covered individual's family member's active duty
service or notice of an impending call or order to active duty in the Armed Forces including, but
not limited to, providing for the care or other needs of the military member's child or other family
member, making financial or legal arrangements for the military member, attending counseling,
attending military events or ceremonies, spending time with the military member during a rest
and recuperation leave or following return from deployment or making arrangements following
the death of the military member.
2.02: continued
458 CMR: DEPARTMENT OFFAMILY AND MEDICAL LEAVE
Inpatient Care. An overnight stay in a hospital, hospice, or residential medical care facility,
including any period of incapacity, or any subsequent treatment in connection with such inpatient
care.
Intermittent Leave. Leave taken in separate periods of time due to a single qualifying reason,
rather than for one continuous period of time. Examples of intermittent leave include leave taken
on an occasional basis for medical appointments or leave taken several days at a time spread over
a period of months. Intermittent leave shall be taken in increments consistent with the
established policy of the employer or covered business entity uses to account for use of other
forms of leave; provided, however, that the Department will not pay in increments of less than
15 minutes. A covered individual shall not be permitted to apply for payment for benefits
associated with intermittent leave until they have eight hours of accumulated leave time, unless
more than 30 calendar days has lapsed since the initial taking of such leave.
Job Protected Leave. The period of time described in 458 CMR 2.16( 1 ), immediately following
the first date on which an employee commences the taking of any type of leave that is associated
with a qualifying reason, regardless of whether an application for benefits has been submitted
to the Department in connection therewith or whether that leave is paid or unpaid. Employees
who do not file an application for benefits with the Department, but use any other type of leave,
including accrued paid leave or unpaid leave approved by an employer, leave under:
(a) temporary disability policy or program of an employer;
(b) paid family, or medical leave policy of an employer; or
(c) an Extended Illness Leave Bank provided by an employer, and taken for a qualifying
reason, will be entitled to job protected leave as of the date of commencing such leave and
that leave will run concurrently with the leave period provided in M.G.L. c. 175M.
Medical Leave. Leave taken by a covered individual due to a serious health condition.
Medical Leave Benefits. Wage replacement paid pursuant to M.G.L. c. 175M, § 3, and provided
in accordance with M.G.L. c. 175M, § 2, to a covered individual while the covered individual
is on medical leave.
Municipality, District, Political Subdivision or its Instrumentality. Shall include municipal
departments such as school departments, police departments, fire departments or public works
departments.
Parent. The biological, adoptive, step- or foster-mother or father of the covered individual.
Pay Period. The shortest pay period used by a business or trade for regular payments to any
group of covered individuals of the business or trade.
Private Plan Administrator. The third-party administrator of an employer's or covered business
entity's private paid family and/or medical leave plan.
Qualifying Earnings.
(a) wages paid to an employee;
(b) payments by covered business entities to covered contract workers; and
(c)
earnings from self-employment on which a self-employed individual is making
contributions pursuant to 458 CMR 2.06.
Qualifying Exigency. A need arising out of a covered individual's family member's active duty
service or notice of an impending call or order to active duty in the Armed Forces including, but
not limited to, providing for the care or other needs of the military member's child or other family
member, making financial or legal arrangements for the military member, attending counseling,
attending military events or ceremonies, spending time with the military member during a rest
and recuperation leave or following return from deployment or making arrangements following
the death of the military member.
Qualifying Reason. Any of the following reasons for which a covered individual is eligible for
family or medical leave benefits: to bond with a child during the first 12 months after the child's
birth, adoption, or foster care placement; to care for a family member's serious health condition;
to care for a family member who is a covered service member; a qualifying exigency arising out
of a family member's active duty or impending call to active duty in the Armed Forces; or the
covered individual's own serious health condition that incapacitates the individual from
performing the essential functions of the individual's job.
Reduced Leave Schedule. A leave schedule that reduces the usual number of hours per
workweek, or hours per workday, of a covered individual.
Self-employed Individual. A sole proprietor, sole member of a limited liability company or
limited liability partnership or an individual whose net profit or loss from a business is required
to be reported to the Massachusetts Department of Revenue; provided, however, that such
individual resides in Massachusetts.
Serious Health Condition. An illness, injury, impairment or physical or mental condition that
involves:
(a) inpatient care in a hospital, hospice or residential medical facility; or
(b) continuing treatment by a health care provider.
Sibling. The biological, adoptive, step-brother or step-sister of a covered individual.
State Average Weekly Wage. The average weekly wage in Massachusetts as calculated under
M.G.L. c. 151A, § 29(a) and determined by the Director of the Massachusetts Department of
Unemployment Assistance.
Trust Fund. The Family and Employment Security Trust Fund established in M.G.L. c. 175M,
§ 7.
Wages. Shall have the same meaning as provided in M.G.L. c. 151A, § 1(s).
Weekly Benefit Amount. The amount of wage replacement paid to a covered individual on a
weekly basis while the covered individual is on family or medical leave, as provided in
M.G.L. c. 175M, § 3.