Massachusetts’ New Paid Family Medical Leave is Live – What if You Were Treated Poorly By Your Employer Because You Took It?

Massachusetts’ New Paid Family Medical Leave is Live – What if You Were Treated Poorly By Your Employer Because You Took It?

Massachusetts recently revamped the Commonwealth’s Paid Family and Medical Leave law, and “went live” in January, 2021.[i] The Paid Family and Medical leave (“PFML”) allows for employees who work in Massachusetts, self-employed individuals, and certain independent contractors to take paid time off from work to: care for a family member with a serious health condition, bond with a newborn or adopted child during the first twelve months of life or adoption, care for a family member who is serving in the armed forces and develops a serious health condition, or manage the employee’s own serious health condition.[ii]

There is an analogous federal statute called the Family Medical Leave Act, or (“FMLA”). The FMLA differs from PFML in important respects. The FMLA requires that the employer has a workforce of at least fifty employees and is only available to employees to use on themselves, their spouse, their parent, or their child.[iii] By contrast, the Massachusetts state law, PFML is much more charitable with their definition of family and as previously stated, and its eligibility requirements are more expansive.[iv] Under either law an employer may not take any adverse action against an employee for lawfully utilizing paid time off.[v]

Bringing a retaliation claim under either the PFML, or the FMLA, the employee must allege:

  • The employee took paid medical leave time;
  • But for the employee’s exercise of their time off;
  • Their employer took an adverse action.

An adverse action under the newly worked PFML include: threatening to retaliate, actually discharging, firing, suspending, expelling, disciplining, or any other manner of discrimination against the employee for partaking in leave.[vi]Furthermore, a presumption of discrimination can be used to prove the elements of a case. This takes the form of any negative change in the seniority, status, employment benefits, pay, or other terms or conditions of employment taken during the six-month period following a leave or any employee’s restoration to a position [emphasis added].[vii]  From the employer’s side, a negative change excludes trivial or inconveniences that affect de minimis aspects of an employee’s work.[viii]

Often times employers use “pretext” as a means of retaliation. Such “pretext” often are reasons given by employers to avoid liability for retaliation. Examples of pretext include: after the fact justification, falsities, or a dramatic shift in treatment after participating in a protected activity, such as family and medical leave.[ix]  Whether or not pretexts exist depends upon the facts of each individual case.

If you believe you may have been retaliated against by your employer for taking leave under the PFML please do not hesitate to contact Burger Law Group PLLC to schedule a consultation.

 

[i] Paid Family and Medical Leave Act Fact Sheet. Accessed 2.13.21. https://www.mass.gov/info-details/paid-family-and-medical-leave-pfml-fact-sheet.

[ii] Id.

[iii] See M.G.L. 175M § 1.

[iv] See Id. Generally.

[v] See Id. at § 9.

[vi] See 458 C.M.R. 2.00 at § 2.16.

[vii] Id.

[viii] Id.

[ix] See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 98 (2009); Mole v. University of Massachusetts, 58 Mass. App. Ct. 29, 41-43 (2003).

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