Intermittent Leave and Reduced Leave Schedules

(1) Generally. A covered individual may take family or medical leave on an intermittent or reduced leave schedule, as follows: (a) For family leave to bond with a child during the first 12 months after the child's birth, adoption, or foster care placement, leave may be taken on an intermittent or reduced leave schedule only if the employer or covered business entity and employee or covered contract worker mutually agree. (b) For family leave to care for a family member's serious health condition, to care for a family member who is a covered service member, leave may be taken on an intermittent or reduced leave schedule if the health care provider determines it is medically necessary. (c) For family leave due to a qualifying exigency arising out of a family member's active duty or impending call to active duty in the Armed Forces, leave may be taken on an intermittent or reduced leave schedule. (d) For medical leave due to a covered individual's own serious health condition, intermittent leave may be taken if medically necessary. An employee or covered contract worker shall advise the employer or covered business entity, upon request, of the reasons why the intermittent/reduced leave schedule is necessary and of the schedule for treatment, if applicable. The employee or covered contract worker and employer or covered business entity shall attempt to work out a schedule for such leave that meets the individual's needs without unduly disrupting the employer or covered business entity's operations, subject to the approval of the health care provider. (e) Self-employed individuals who have elected coverage and former employees may take leave intermittently or on a reduced leave schedule. (2) Agreed-to Intermittent or Reduced Leave Schedules. An employee or covered contract worker who is approved for and takes leave on an intermittent or reduced leave schedule and who fails to work during the times or on the schedule agreed to with the employer may be subject to employer discipline. An employer shall notify the Department when an employee approved for intermittent leave fails to adhere to the agreed-upon intermittent or reduced leave schedule. In the event that an employee's utilization of intermittent leave is inconsistent with the Department's approval, it shall not be considered retaliation under 458 CMR 2. 1 6(2) for an employer to request additional information related to the use of leave. An employer or covered business entity shall furnish the Department with wages or qualified earnings paid to a covered individual on a monthly basis or at other intervals deemed necessary in the discretion of the Department. The Department may seek a refund from the covered individual or offset any future benefit payments where the Department has determined that the covered individual has received wages or qualifying payments from both the employer or covered business entity and benefits from the Trust Fund for the same period. (3) Impact on Leave Allotments. Taking leave intermittently or on a reduced leave schedule pursuant to 458 CMR 2.13, and M.G.L. c. 175M, §§ 2(c)(2)(A) and (B) shall result in a proportionate reduction in the covered individual's available allotment of leave. For example, if an employee who would otherwise work 40 hours per week takes eight hours of intermittent leave in a week, that leave would count as 1 /5 of a week of leave. If an employee who would otherwise work 30 hours per week only works 20 hours on a reduced leave schedule, the ten hours of leave would constitute 1/3 of a week of leave to be counted against the available allotment of leave. (4) In the event that a covered individual's work schedule varies from week to week, the maximum weekly benefit amount shall be calculated based on 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. A covered individual shall not be eligible for benefits in excess of the number of hours so determined by the Department. For purposes of intermittent leave, benefits may be prorated on an hourly basis utilizing the average number of hours worked during the 12 months preceding such individual's application for benefits under M.G.L. c. 175M. (5) Weekly Benefit Adjustment. As described in 458 CMR 2.12(5), a covered individual who takes leave on an intermittent or reduced schedule shall receive a weekly benefit amount that is reduced in direct proportion to the intermittent or reduced leave schedule. (6) The benefit year for a covered individual who received benefits for an intermittent leave will commence, following an approval by the Department for continued benefits, on the Sunday immediately preceding the first absence following the exhaustion of the prior benefit year.