14. Private Plans
An employer may meet its obligations under the PFML statute by offering equivalent or better benefits and protections through a private insurance company or by self-insuring. G.L. c. 175M, § 11. Large employers that already offer short-term disability, paid parental leave, or similar benefits may find it is more cost-effective to have the same insurance company manage PFML benefits.
In practice, this adds an extra layer of complexity for the worker applying for PFML. Many large companies use third-party leave administrators to manage FMLA or STD leaves, so the worker receives instructions to contact the leave administrator. But the company may still participate in the public PFML plan, in which case the worker has to apply to DFML if they want the leave to be paid. And if the worker applies to DFML when the employer uses a private plan, the denial notice from DFML will not say which private plan or who to call. The DFML Call Center often refers to employers with a private plan as “employers with an exemption” or “exempt employers,” which is highly misleading. (Such employers apply for an “exemption” from making PFML payroll contributions to the Department of Revenue. 458 C.M.R. 2.07(1)).
Applying for PFML leave with a private plan
Each private plan has its own process and forms for applying for PFML leave. But, they must accept any certification form that would be accepted by DFML (including FMLA and DFML forms). Usually the employee has to call, fax forms, or create an online account. HR should provide instructions upon request. A list of all private plans and contact information is in Appendix B.
Just like the public plan, a private plan must issue a decision to approve or deny within 14 days of receiving a complete application. G.L. c. 175M, § 8(b). However, the plan can send a request for information (RFI) if it does not have all the information it needs. The RFI will delay the decision because the application is not deemed “complete.”
Appealing PFML decisions with a private plan
Private plans must provide an appeals process. 458 C.M.R. 2.07(2)(c). All notices and decisions from a private plan should include a right to appeal, including approval notices. 458 C.M.R. 2.07(2)(d). The worker must send a copy of her appeal to the employer that maintains the private plan. 458 C.M.R. 2.14(3). The worker needs to request a hearing if they want a hearing. 458 C.M.R. 2.14(4).
If a worker appeal is unsuccessful, the worker has a right to a second appeal to DFML to challenge the private plan decision. The private plan “final decision,” must notify the worker of the right to appeal to DFML. 458 C.M.R. 2.07(6). The worker can appeal the DFML decision to the district court.
In practice, very few private plans explain the right to appeal. Many private plans refuse to process applications of former employees or process the application as if it were FMLA or short term disability. Workers who are not satisfied with the private plan decision or who have been not been given the chance to apply should contact the private plan point person at DFML (AnnMarie.Coughlin@mass.gov) or call or email DFML.