458 CMR 2.08
Application for Benefits Filed with the Department
(1) Process for Filing. A covered individual must file an application for benefits for family
leave or medical leave benefits using forms prescribed by the Department. The individual may
file an application for benefits with the Department no more than 60 calendar days before the
anticipated start date of family or medical leave.
(2) Required Notice.
(a) An employee or covered contract worker shall give not less than 30 calendar days notice
to their employer or covered business entity of the anticipated start date of family leave or
medical leave pursuant to M.G.L. c. 175M, § 2. Notice shall be provided as soon as
practicable if a delay is beyond the employee or covered contract worker's control.
(b) The Department will require an employee or covered contract worker to comply with
the employer's or covered business entity's usual and customary notice and procedural
requirements for leave, absent unusual circumstances. An employee or covered contract
worker also may be required by an employer's or covered business entity's policy to contact
a specific individual to report this information.
(c) Notice of an employee's or covered contract worker's need for family and medical leave
must be made to the employer or covered business entity prior to an application to the
Department for family or medical leave benefits. The Department will not accept an
application for benefits, unless notice to the employer or covered business entity was made
in accordance with 458 CMR 2.08(2)(a).
(d)
Where an employee or covered contract worker does not comply with the notice
requirement in 458 CMR 2.08(2)(a) or follow the employer's or covered business entity's
usual notice and procedural requirements, and no unusual circumstances justify the failure
to comply, protected leave and application for benefits may be delayed or denied by the
Department
(e)
When planning medical treatment, the employee or covered contract worker must
consult with the employer or covered business entity in advance of an application to the
Department and make a reasonable effort to schedule the treatment so as not to disrupt
unduly the employer's or covered business entity's operations, subject to the approval of the
health care provider.
(f) If, for reasons beyond the covered individual's reasonable control, the individual cannot
provide the Department with at least 30 calendar days notice then the individual shall provide
notice as soon as is practicable. The Department shall notify a covered individual's employer
or covered business entity, if applicable, not more than five business days after an application
for benefits under M.G.L. c. 175M is filed, and shall facilitate the disclosure and exchange
of relevant information or records regarding the application for benefits. The Department's
notice to an employer or covered business entity shall contain:
1 . the covered individual's full name and other identifying information;
2. the type of leave at issue;
3. the expected duration of the leave;
4. whether the request is for continuous or intermittent leave;
5. a certification as outlined in 458 CMR 2.08(5), supporting the need for a leave under
M.G.L. c. 175M; and
6. any other information relevant to the application for benefits.
(3) Consent. A covered individual filing an application for benefits must provide the
Department with consent to share information regarding the application for benefits and other
information necessary for the Department to process the individual's application for benefits,
including consent to share information with the individual's employer or covered business entity
(if any) and health care provider. Consent shall be acknowledged by the individual in a form
provided by the Department. An application for benefits will not be processed, unless a consent
is provided by the covered individual.
(4) Application for Benefits. When filed, an application for benefits will not be processed by
the Department, unless the application for benefits includes all information necessary for the
Department's review and processing including, but not limited to:
(a) Identifying information, such as Social Security Number or Individual Taxpayer
Identification Number;
(b) The nature of the leave, whether family leave or medical leave;
(c) The starting date and expected duration of the leave;
(d) Whether the leave will be continuous or intermittent;
(e) For employees and covered contract workers:
1. Employer or covered business entity name and identification number (which is
included on the notice the employer or covered business entity is required to provide to
employees and covered contract workers);
2. Evidence that notice was provided to the employer or covered business entity in
advance of the application for benefits, including the date notice was provided to the
employer or covered business entity; and
3. Any denied, granted, or pending requests for leave for a qualifying reason from the
employer during the last 12 months;
(f) An attestation regarding the family relationship in the form specified by the Department
if the leave involves an application for benefits for family leave benefits or an application for
benefits relating to active duty military service by a family member;
(g) Completed certification as required in 458 CMR 2.08(5);
Additional specific information requested by the Department where reasonably necessary
to review and process an individual's application for benefits including, but not limited to,
whether the covered individual will be receiving any other wage replacement as set forth in
458 CMR 2.12(6);
(h) If an application for benefits is filed with the Department or is filed but does not include
all required information and more than 90 calendar days have passed since the start of the
individual's period of leave, the covered individual may receive reduced benefits in the
discretion of the Director.
(5) Certifications. All applications for benefits shall be supported by a certification evidencing
that the leave is for a qualifying reason.
(a) Medical Leave Benefits. The certification must be from a health care provider and must
include:
1. a statement that the covered individual has a serious health condition;
2. the date on which the serious health condition commenced;
3. the probable duration of the serious health condition;
4. other information required by the Department, including a certification by the health
care provider that the individual is incapacitated from work due to the serious health
condition; and
5. where the application for benefits is for leave on an intermittent or reduced leave
schedule, information regarding the need for intermittent leave, including a statement that
such leave or schedule is medically necessary.
In the event that a serious health condition of the covered individual prevents the covered
individual from providing the required certification within 90 calendar days of the start of
the leave, the Department will allow for a good cause exemption to permit delayed benefits
under 458 CMR 2.08(4)(i).
(b) Family Leave Benefits to Care for a Family Member with a Serious Health Condition.
The certification must contain a statement in a form prescribed by the Department confirming
the relationship between the covered individual and the family member and must include the
following from the covered individual or the family member's health care provider:
1. the name and address of the family member and the relationship to the covered
individual;
2.08: continued
(3)
Consent. A covered individual filing an application for benefits must provide the
Department with consent to share information regarding the application for benefits and other
information necessary for the Department to process the individual's application for benefits,
including consent to share information with the individual's employer or covered business entity
(if any) and health care provider. Consent shall be acknowledged by the individual in a form
provided by the Department. An application for benefits will not be processed, unless a consent
is provided by the covered individual.
(4) Application for Benefits. When filed, an application for benefits will not be processed by
the Department, unless the application for benefits includes all information necessary for the
Department's review and processing including, but not limited to:
(a)
Identifying information, such as Social Security Number or Individual Taxpayer
Identification Number;
(b) The nature of the leave, whether family leave or medical leave;
(c) The starting date and expected duration of the leave;
( d) Whether the leave will be continuous or intermittent;
(e) For employees and covered contract workers:
1 . Employer or covered business entity name and identification number (which is
included on the notice the employer or covered business entity is required to provide to
employees and covered contract workers);
2. Evidence that notice was provided to the employer or covered business entity in
advance of the application for benefits, including the date notice was provided to the
employer or covered business entity; and
3. Any denied, granted, or pending requests for leave for a qualifying reason from the
employer during the last 12 months;
(f) An attestation regarding the family relationship in the form specified by the Department
if the leave involves an application for benefits for family leave benefits or an application for
benefits relating to active duty military service by a family member;
(g) Completed certification as required in 458 CMR 2.08(5);
Additional specific information requested by the Department where reasonably necessary
to review and process an individual's application for benefits including, but not limited to,
whether the covered individual will be receiving any other wage replacement as set forth in
458 CMR 2.12(6);
(h) If an application for benefits is filed with the Department or is filed but does not include
all required information and more than 90 calendar days have passed since the start of the
individual's period of leave, the covered individual may receive reduced benefits in the
discretion of the Director.
(5) Certifications. All applications for benefits shall be supported by a certification evidencing
that the leave is for a qualifying reason.
(a) Medical Leave Benefits. The certification must be from a health care provider and must
include:
1 . a statement that the covered individual has a serious health condition;
2. the date on which the serious health condition commenced;
3. the probable duration of the serious health condition;
4. other information required by the Department, including a certification by the health
care provider that the individual is incapacitated from work due to the serious health
condition; and
5. where the application for benefits is for leave on an intermittent or reduced leave
schedule, information regarding the need for intermittent leave, including a statement that
such leave or schedule is medically necessary.
In the event that a serious health condition of the covered individual prevents the covered
individual from providing the required certification within 90 calendar days of the start of
the leave, the Department will allow for a good cause exemption to permit delayed benefits
under 458 CMR 2.08(4)(i).
(b) Family Leave Benefits to Care for a Family Member with a Serious Health Condition.
The certification must contain a statement in a form prescribed by the Department confirming
the relationship between the covered individual and the family member and must include the
following from the covered individual or the family member's health care provider:
1 . the name and address of the family member and the relationship to the covered
individual;
2. a statement that the family member has a serious health condition;
3. the date on which the family member's serious health condition commenced;
4. the probable duration of the family member's serious health condition;
5. a statement that the covered individual is needed to care for the family member;
6. an estimate regarding the frequency and the anticipated duration of time that the
covered individual is needed to care for the family member; and
7. information from the covered individual that proves to the satisfaction of the
Department the identity of the family member.
(c) Family Leave Benefits for the Birth of a Child. The certification must include:
1. the child's birth certificate;
2. a statement from the child's health care provider stating the child's birth date; or
3. a statement from the health care provider of the person who gave birth stating the
child's birth date.
The leave period for which benefits are requested may only include dates within 12
months of the child's birth date. In the case of multiple births, no more than 12 weeks
of leave benefits total are available in a benefit year for this purpose.
(d) Family Leave for the Placement of Child for Adoption or Foster Care. The certificate
must be from the child's health care provider or from an adoption or foster care agency
involved in the placement or the Massachusetts Department of Children and Families and
must confirm both the placement and the date of the placement. The leave period for which
benefits are requested must be for dates within 12 months of the placement date.
To the extent that the status of a covered individual as an adoptive or foster parent
changes while an application for benefits is pending or while the covered individual is
receiving benefits, the covered individual shall provide written notice to the Department
within five business days of such change in status. The Massachusetts Department of
Children and Families may confirm in writing the status of the covered individual as an
adoptive or foster parent while an application for benefits is pending or while a covered
individual is receiving benefits.
(e) Family Leave Benefits for a qualifying exigency arising out of the fact that a family
member is on active military duty or has been notified of an impending call or order to active
duty in the Armed Forces. The certification must include:
1. a copy of the family member's active duty orders; or
2. a letter of Impending Activation from the family member's Commanding Officer; or
3. other documentation reasonably acceptable to the Department in circumstances
where, for good cause shown, the applicant is unable to produce the documentation
specified in 458 CMR 2.08(5)(e)1. or 2.;
4. a statement of the family relationship between the service member and the family
member requesting benefits in a form prescribed by the Department;
5. information from the covered individual that proves to the satisfaction of the
Department the identity of the family member;
6. the name and address of the family member being cared for;
7. the dates or period of time for which leave is requested; and
8. the underlying reason for the exigency leave.
(f) Family Leave Benefits to Care for a Family Member Who Is a Covered Service Member.
The certification from the covered individual or the service member's health care provider
must include:
1. the date on which the covered service member's serious health condition commenced;
2. the probable duration of the condition;
3. a statement that the covered individual is needed to care for the family member;
4. an estimate of the amount of time the covered individual will be needed to care for
the family member;
5. an attestation by the service member's health care provider and the covered individual
that the health condition is connected to the service member's military service;
6. a statement of the family relationship between the service member and the family
member requesting benefits in a form prescribed by the Department; and
7. information from the covered individual that proves to the satisfaction of the
Department the identity of the family member;
8. The name and address of the family member being cared for; and
9. other information or documentation that may be required by the Department.
2.08: continued
2. a statement that the family member has a serious health condition;
3. the date on which the family member's serious health condition commenced;
4. the probable duration of the family member's serious health condition;
5. a statement that the covered individual is needed to care for the family member;
6. an estimate regarding the frequency and the anticipated duration of time that the
covered individual is needed to care for the family member; and
7.
information from the covered individual that proves to the satisfaction of the
Department the identity of the family member.
(c) Family Leave Benefits for the Birth of a Child. The certification must include:
1 . the child's birth certificate;
2. a statement from the child's health care provider stating the child's birth date; or
3. a statement from the health care provider of the person who gave birth stating the
child's birth date.
The leave period for which benefits are requested may only include dates within 12
months of the child's birth date. In the case of multiple births, no more than 12 weeks
of leave benefits total are available in a benefit year for this purpose.
(d) Family Leave for the Placement of Child for Adoption or Foster Care. The certificate
must be from the child's health care provider or from an adoption or foster care agency
involved in the placement or the Massachusetts Department of Children and Families and
must confirm both the placement and the date of the placement. The leave period for which
benefits are requested must be for dates within 12 months of the placement date.
To the extent that the status of a covered individual as an adoptive or foster parent
changes while an application for benefits is pending or while the covered individual is
receiving benefits, the covered individual shall provide written notice to the Department
within five business days of such change in status. The Massachusetts Department of
Children and Families may confirm in writing the status of the covered individual as an
adoptive or foster parent while an application for benefits is pending or while a covered
individual is receiving benefits.
(e) Family Leave Benefits for a qualifying exigency arising out of the fact that a family
member is on active military duty or has been notified of an impending call or order to active
duty in the Armed Forces. The certification must include:
1 . a copy of the family member's active duty orders; or
2. a letter of Impending Activation from the family member's Commanding Officer; or
3. other documentation reasonably acceptable to the Department in circumstances
where, for good cause shown, the applicant is unable to produce the documentation
specified in 458 CMR 2.08(5)(e)l . or 2.;
4. a statement of the family relationship between the service member and the family
member requesting benefits in a form prescribed by the Department;
5.
information from the covered individual that proves to the satisfaction of the
Department the identity of the family member;
6. the name and address of the family member being cared for;
7. the dates or period of time for which leave is requested; and
8. the underlying reason for the exigency leave.
(f) Family Leave Benefits to Care for a Family Member Who Is a Covered Service Member.
The certification from the covered individual or the service member's health care provider
must include:
1 . the date on which the covered service member's serious health condition commenced;
2. the probable duration of the condition;
3. a statement that the covered individual is needed to care for the family member;
4. an estimate of the amount of time the covered individual will be needed to care for
the family member;
5. an attestation by the service member's health care provider and the covered individual
that the health condition is connected to the service member's military service;
6. a statement of the family relationship between the service member and the family
member requesting benefits in a form prescribed by the Department; and
7. information from the covered individual that proves to the satisfaction of the
Department the identity of the family member;
8. The name and address of the family member being cared for; and
9. other information or documentation that may be required by the Department.
(g) Where it determines that a certification lacks required information, or is not accurate or
authentic, or is otherwise insufficient, the Department may contact the health care provider
and require that it verify, supplement, or otherwise amend the information in the certification.
(6) Information from Employer or Covered Business Entity. Following notice given under
458 CMR 2.08(2), the Department will request from the employer or covered business entity
information supporting whether the employee's or covered contract worker's request for medical
or family leave has been approved, denied or is pending upon the receipt of additional
information.
Upon request, an employer or covered business entity shall within ten business days provide
to the Department information or records relevant to an application for benefits made by a
covered individual, including with respect to the covered individual the following:
(a) Wage and/or earnings information for the past 12 months;
(b) A description of the employee's or covered contract worker's position;
(c) Whether the employee or covered contract worker currently works a full- or part-time
schedule;
(d) Weekly hours worked;
(e) Prior requests/approvals for a qualifying reason;
(f) Amount of paid leave already taken for a qualifying reason during the current benefit
year;
(g) A description of the employer's or covered business entity's own paid leave policies and
whether the employee or covered contract worker has received paid or unpaid leave during
the last 12 months under any plan or practice of the employer or covered business entity, and
whether the employee or covered contract worker will receive any paid leave benefits from
the employer or covered business entity during the requested leave period at issue;
(h) Whether the covered individual has applied for concurrent FMLA or other leave and
whether the employer or covered business entity has approved the application;
(i) Whether the covered individual will be receiving any other wage replacement benefits
as set forth in 458 CMR 2.12(6); and
(j) Any other relevant information or records related to the claim, including any evidence
of a potentially fraudulent claim.
(7) Processing of Applications. The time standards for the Department's processing of a
complete application for paid leave benefits are as follows:
(a) Within 14 calendar days of receiving an application under M.G.L. c. 175M, the
Department shall notify applicants for benefits of its approval or denial of applications for
paid leave benefits, or of the need for additional information from the covered individual or
the employer or covered business entity. A request from the Department for additional
information necessary to process an application for paid leave benefits shall satisfy the
Department's obligation to timely notify applicants under M.G.L. c. 175M, § 8(b), if such
request is made within 14 calendar days of its receipt of the complete application for benefits.
(b) The Department shall commence payment of leave benefits not less than 14 calendar
days after approving a complete application, unless that determination occurs more than 14
calendar days before the onset of eligibility, in which case the Department shall commence
payment of leave benefits as soon as eligibility begins.
(8) Leave Allotments.
(a) Beginning January 1, 2021, covered individuals shall be eligible for up to 26 total
weeks, in the aggregate, of family and medical leave under M.G.L. c. 175M in a benefit year.
(b) Beginning January 1, 2021, covered individuals shall be eligible for up to 12 weeks of
family leave in a benefit year:
1. for the birth, adoption, or foster care placement of a child; or
2. due to a qualifying exigency arising out of the fact that a family member is on active
duty or has been notified of an impending call to active duty in the Armed Forces.
(c) Beginning January 1, 2021, covered individuals shall be eligible for up to 26 weeks of
family leave in a benefit year in order to care for a family member who is a covered
servicemember.
(d) Beginning January 1, 2021, covered individuals shall be eligible for up to 20 weeks of
medical leave in a benefit year if they have a serious health condition that incapacitates them
from work.
2.08: continued
(g) Where it determines that a certification lacks required information, or is not accurate or
authentic, or is otherwise insufficient, the Department may contact the health care provider
and require that it verify, supplement, or otherwise amend the information in the certification.
(6) Information from Employer or Covered Business Entity. Following notice given under
458 CMR 2.08(2), the Department will request from the employer or covered business entity
information supporting whether the employee's or covered contract worker's request for medical
or family leave has been approved, denied or is pending upon the receipt of additional
information.
Upon request, an employer or covered business entity shall within ten business days provide
to the Department information or records relevant to an application for benefits made by a
covered individual, including with respect to the covered individual the following:
(a) Wage and/or earnings information for the past 12 months;
(b) A description of the employee's or covered contract worker's position;
(c) Whether the employee or covered contract worker currently works a full- or part-time
schedule;
(d) Weekly hours worked;
(e) Prior requests/approvals for a qualifying reason;
(f) Amount of paid leave already taken for a qualifying reason during the current benefit
year;
(g) A description of the employer's or covered business entity's own paid leave policies and
whether the employee or covered contract worker has received paid or unpaid leave during
the last 12 months under any plan or practice of the employer or covered business entity, and
whether the employee or covered contract worker will receive any paid leave benefits from
the employer or covered business entity during the requested leave period at issue;
(h) Whether the covered individual has applied for concurrent FMLA or other leave and
whether the employer or covered business entity has approved the application;
(i) Whether the covered individual will be receiving any other wage replacement benefits
as set forth in 458 CMR 2.12(6); and
(i) Any other relevant information or records related to the claim, including any evidence
of a potentially fraudulent claim.
(7)
Processing of Applications. The time standards for the Department's processing of a
complete application for paid leave benefits are as follows:
(a)
Within 14 calendar days of receiving an application under M.G.L. c. 175M, the
Department shall notify applicants for benefits of its approval or denial of applications for
paid leave benefits, or of the need for additional information from the covered individual or
the employer or covered business entity. A request from the Department for additional
information necessary to process an application for paid leave benefits shall satisfy the
Department's obligation to timely notify applicants under M.G.L. c. 175M, § 8(b), if such
request is made within 14 calendar days of its receipt of the complete application for benefits.
(b) The Department shall commence payment of leave benefits not less than 14 calendar
days after approving a complete application, unless that determination occurs more than 14
calendar days before the onset of eligibility, in which case the Department shall commence
payment of leave benefits as soon as eligibility begins.
(8) Leave Allotments.
(a)
Beginning January 1, 2021, covered individuals shall be eligible for up to 26 total
weeks, in the aggregate, of family and medical leave under M.G.L. c. 175M in a benefit year.
(b) Beginning January 1, 2021, covered individuals shall be eligible for up to 12 weeks of
family leave in a benefit year:
1 . for the birth, adoption, or foster care placement of a child; or
2. due to a qualifying exigency arising out of the fact that a family member is on active
duty or has been notified of an impending call to active duty in the Armed Forces.
(c) Beginning January 1, 2021, covered individuals shall be eligible for up to 26 weeks of
family leave in a benefit year in order to care for a family member who is a covered
servicemember.
(d) Beginning January 1, 2021, covered individuals shall be eligible for up to 20 weeks of
medical leave in a benefit year if they have a serious health condition that incapacitates them
from work.
(e) Beginning July 1, 2021, covered individuals shall be eligible for up to 12 weeks of
family leave to care for a family member with a serious health condition.
(f) Leave allotments are based on the number or hours or days a covered individual works.
When a covered individual works a part-time schedule or variable hours, the amount of leave
that a covered individual uses is determined on a pro rata or proportional basis. If a covered
individual's schedule varies from week to week to such an extent that an employer or covered
business entity is unable to determine with certainty how many hours the covered individual
would otherwise have worked (but for taking leave as authorized by M.G.L. c. 175M), a
weekly average of the hours scheduled over the 12 months prior to the beginning of the leave
period will be used for calculating the leave entitlement.
(9) Consistent with the notice requirements set forth in 458 CMR 2.08(2)(b), the Department
may allow an employer, covered business entity, or its designee to submit an application for
benefits on behalf of a covered individual. In order to do so, employers, covered business
entities, or leave administrators must be approved by the Department and agree to adhere to all
of the requirements prescribed in 458 CMR 2.08, including the timelines set forth in 458 CMR
2.08(7).
(10) Leave for Substance Use Disorder.
(a) A Substance Use Disorder may be a serious health condition. Family or medical leave
may only be taken for treatment for substance use disorder by a health care provider, by a
provider of health care services on referral by a health care provider or by a program licensed
or approved by the Massachusetts Department of Public Health. An absence because of the
employee's use of the substance, rather than for treatment, does not qualify for leave.
(b) Treatment for substance use disorder does not prevent an employer from taking
employment action against an employee. The employer may not take action against the
employee because the employee has exercised his or her right to take leave for treatment.
However, if the employer has an established policy, applied in nondiscriminatory manner
that has been communicated to all employees, that provides under certain circumstances an
employee may be terminated for substance use, pursuant to that policy, the employee may
be terminated whether or not they are presently taking leave. An employee may also take
leave to care for a covered family member who is receiving treatment for substance use
disorder. The employer may not take action against an employee who is providing care for
a covered family member receiving treatment for substance use disorder because the
employee has exercised his or her right to take leave.