10. For any qualifying absence

PFML protects a worker’s job for any qualifying absence. A worker does not have to say the words “PFML,” or apply for PFML benefits for the job to be protected. 458 C.M.R. 2.02 explains that “Job Protected Leave” means “The period of time described in 458 C.M.R. 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.” Even if the employer could require the worker to apply for PFML to have the job protected, the worker has 90 days from the first day of leave to submit an application to DFML. G.L. c. 175M, § 5(a). So, the employer cannot practically or legally require an application for benefits in order to hold the job. 

Serious Health Condition. PFML follows FMLA in determining if a worker has a “serious health condition,” or qualifying medical absence. 29 CFR § 825.113, 114. A serious health condition is any of the following:

• Inpatient care: Overnight stay in a hospital or medical facility
• Incapacity for three consecutive calendar days PLUS
  o    Treatment two or more times within 30 days OR
  o    Treatment one time with a regimen of continuing treatment
• Any period of incapacity due to pregnancy, or for prenatal care.
• A chronic serious health condition that (i) Requires periodic visits for treatment by a health care provider; (ii) Continues over an extended period of time (including recurring episodes); and (iii) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
• A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, but there is continuing medical supervision.
• Surgery after an accident or other injury
• A condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).

Family care. When a family member has a serious health condition and requires care from the worker, such as bringing to appointments, helping with medications, or preparing food, that is PFML-eligible and job-protected time off. PFML defines family member much more broadly than FMLA. Family members include: the spouse, domestic partner, child, grandchild, sibling, parent, grandparent, parent of a spouse or domestic partner of the covered individual; or a person who stood in loco parentis to the covered individual when the covered individual was a minor child. G.L. c. 175M, § 1. 

Family care may be in another country. In that case, the worker may need to bring a translated certification of serious health condition to the foreign medical provider to fill out and sign, then provide a translation back to English. DFML may also request a document showing the health care provider is certified in that country, such as a license, a medical stamp on a letter, or a letter on letterhead from a hospital. See Appendix for translations of the Serious Health Condition form. 

Bonding leave. The birthing parent and the non-birthing parent can take up to 12 weeks off in the first year of the child’s life. For a newborn, the parent submits a copy of the hospital record of birth or birth certificate which names the parent.

An adoptive or foster parent can take up to 12 weeks off in the first year following the adoption or placement. The parent submits a certificate from the child’s doctor 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. 458 C.M.R. 2.08(5)(d). 

Bonding leave is a kind of family leave, so it counts against the annual allotment of 12 weeks. This means a worker cannot take 12 weeks to care for a spouse with a serious health condition and then take 12 more weeks to care for a new child, within a twelve month period. Or, if the new child develops a serious health condition, the parent cannot take more than 12 weeks off in any 12-month period to care for and bond with the child.