Massachusetts Paid Family and Medical Leave provides most private-sector employees with up to 26 weeks of paid leave per benefit year for qualifying medical and family reasons. The program is funded through payroll contributions and administered by the Department of Family and Medical Leave. What most employees do not know is that taking PFML leave is protected activity, and an employer who disciplines, demotes, or terminates an employee for taking or attempting to take PFML leave has committed a violation that carries its own damages and remedies independent of any discrimination claim.
What PFML Covers
Massachusetts PFML provides up to 20 weeks of paid medical leave for an employee’s own serious health condition, up to 12 weeks of paid family leave to care for a family member with a serious health condition or to bond with a newborn, newly adopted, or newly placed foster child, and up to 26 combined weeks when both types of leave are used in the same benefit year. The benefit replaces a portion of the employee’s wages on a sliding scale, with higher replacement rates for lower-wage workers. Most employees who have been employed in Massachusetts and contributed to the program are eligible after meeting a minimum earnings threshold.
Attorneys at Greenberg Gross LLP who handle Boston employment cases regularly see situations where employees took PFML leave and returned to find their position eliminated, their role diminished, or their performance suddenly under scrutiny. These post-leave adverse actions are exactly what the PFML anti-retaliation provision was designed to address.
The Anti-Retaliation Provision and What It Prohibits
Massachusetts General Laws Chapter 175M Section 9 prohibits employers from retaliating against an employee for exercising any right under the PFML statute, including taking leave, applying for benefits, or filing a complaint about a PFML violation. An employer cannot use an employee’s PFML leave as a negative factor in a performance review, cannot deny a promotion because the employee has taken extended leave, and cannot restructure a role to make it less desirable upon the employee’s return. The burden of proof in a PFML retaliation case shifts to the employer once the employee establishes that protected activity occurred and an adverse action followed.
How PFML Interacts With FMLA and Employer Plans
PFML and the federal Family and Medical Leave Act overlap significantly in what they cover, and when both apply, the leave typically runs concurrently. The key practical difference is that PFML is paid and FMLA is unpaid. An employer who has a private paid leave plan may apply for an exemption from the state PFML program, but only if the private plan provides equal or greater benefits. Employees covered by exempt private plans have the same anti-retaliation protections as those covered by the state program. Employers who attempt to deny FMLA-qualified leave while relying on an exempt private plan may find they have violated both statutes simultaneously.
Filing a PFML Retaliation Complaint
PFML retaliation claims are filed with the Massachusetts Department of Family and Medical Leave within 3 years of the retaliatory act. Unlike Chapter 151B discrimination claims, PFML retaliation claims do not require a prior MCAD filing before suit can be brought. The Massachusetts Department of Family and Medical Leave’s employee rights resources explain the complaint process, the anti-retaliation protections, and the remedies available for violations.
