Determinations by the Department

(1) Except as limited by 458 CMR 2.12, the Department may approve a paid leave benefit for a qualifying reason for a period of family or medical leave stated in 458 CMR 2.08(8)(a) through (f). (2) Application for Benefits Determination. The Department shall consider the following when making a determination on an application for benefits: (a) confirmation that the covered individual provided the required notice pursuant to 458 CMR 2.08(2)(a); (b) the financial eligibility test described in 458 CMR 2.02; (c) certification, as required by M.G.L. c. 175M, § 5, including a certification by a health care provider, supporting the necessity for leave; (d) whether the covered individual's request for family or medical leave associated with the application for benefits was approved or denied by the employer or covered business entity and the reason(s) for the approval or denial; (e) whether the covered individual has actually taken or plans to take the leave associated with the application for benefits; and (f) any other relevant information deemed necessary by the Director. (3) The Department shall provide contemporaneous notice to the covered individual and to the employer or covered business entity, if any. 2.08: continued (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 ofleave 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.