For Massachusetts employers, managing family and medical leave today means working with two overlapping systems: the federal Family and Medical Leave Act (FMLA) and the Massachusetts Paid Family and Medical Leave (PFML) law, which is administered by the Massachusetts Department of Family and Medical Leave (DFML). Both laws provide job protection for leave taken for family bonding and serious health conditions, but the two statutes differ in many other respects. The most glaring differences are in terms of employee eligibility, wage replacement, and maximum leave length. FMLA provides unpaid job protected leave for up to 12 weeks per benefit year for eligible employees who have met the length of service requirements. PFML, by contrast, provides up to 26 weeks of job protected leave with wage replacement benefits for eligible employees without regard to length of service with their current employer.
Employers must carefully navigate when and how these overlapping laws apply to ensure employees’ rights under these statutes are honored, manage expectations around benefits and job protection, and avoid costly legal challenges.
Understanding FMLA: The Federal Framework
FMLA eligibility
FMLA applies to employers with at least 50 employees within a 75-mile radius, as well as all public employers and all elementary and secondary schools. Employees are eligible if they have at least 12 months of service (not necessarily consecutive) and have worked at least 1,250 hours in the prior 12 months. Many small employers and newer or part-time employees fall outside FMLA coverage, though they may be eligible for leave under PFML or another employer-provided leave benefit.
Qualifying reasons for leave
Eligible employees may take up to 12 weeks of unpaid leave in a benefit year for:
- Birth, adoption, or foster placement of a child;
- The employee’s own serious health condition;
- Caring for a spouse, child, or parent with a serious health condition;
- Qualifying exigencies related to a family member’s foreign deployment
Eligible employees may take up to 26 weeks of unpaid leave in a benefit year to care for a current servicemember or recent veteran with a serious health condition.
Key employer obligations
Upon receiving notice that an employee is requesting leave that might qualify for FMLA, the employer must provide timely notice of the employee’s FMLA rights and obligations, request any certifications and additional information needed to determine FMLA eligibility, and issue written notice of the employer’s designation of the leave as either FMLA-qualifying or not and any justification for deeming the leave non-qualifying. The employer must maintain group health insurance on the same terms as if the employee was still working and must provide job restoration to the same or an equivalent position at the end of the protected leave.
Common FMLA Pitfalls
Even well-meaning employers can stumble on FMLA requirements. Once an employee provides enough information to suggest that a leave might be FMLA-qualifying, it falls to the employer to request any additional information needed to make that determination. Failing to do so may prevent the employer from properly designating leave as FMLA-qualifying, leading to potential claims by the employee of FMLA interference. Employers should ensure that they are properly documenting leave requests and leave dates, certifications, and communications with the employee about leave. Upon an employee’s return from leave, employers should be careful not to make comments or take actions that could be characterized as unlawful interference or retaliation. For example, if an employer discourages an employee from taking leave or penalizes them for failing to complete work due to an FMLA-protected absence, the employer risks legal liability. Additionally, not tracking intermittent leave time accurately or forgetting to continue health benefits can violate the law. Understanding the FMLA framework and consistently applying it is the best defense against these issues.
Understanding PFML: Massachusetts’ Paid Leave Program
PFML eligibility
PFML applies to nearly all Massachusetts employers, regardless of size. It also applies to out-of-state employers who employ Massachusetts-based workers. Eligibility is based on Massachusetts earnings during the previous 4 calendar quarters, not on tenure or hours worked for a current employer. This means newer workers, part-timers, and recently unemployed individuals can qualify for PFML even if they are not FMLA-eligible.
Qualifying reasons for leave
In a single benefit year, PFML provides up to 26 weeks of paid, job-protected leave, which could encompass:
- Up to 20 weeks of medical leave for the employee’s own serious health condition;
- Up to 12 weeks of family leave to bond with a new child;
- Up to 12 weeks to care for a family member with a serious health condition;
- Up to 12 weeks for certain military exigencies and 26 weeks for military caregiver leave.
Benefit structure
Employees must submit a claim to the Department of Family and Medical Leave to receive wage replacement from DFML. Benefits are calculated as a percentage of the employee’s average weekly wage up to a statutory weekly cap. There is usually a one-week waiting period (with some exceptions), after which benefits begin. Employers should be aware that even if an employee does not apply for paid leave benefits through DFML, an eligible employee who takes leave for a PFML-qualifying reason is nonetheless entitled to PFML’s protections against interference and retaliation.
Key employer obligations
PFML is financed via a payroll tax. Employers must withhold the required employee contribution and remit employee and any required employer contributions to the state. Employers must also inform employees of their PFML rights and conspicuously display a PFML workplace poster. When employees submit PFML claims, DFML sends notices to the employer and requests verification by the employer of the employee-provided information. Employers should track these notices and respond promptly to DFML’s verification and information requests. Employers must provide job protection and maintain the employee’s health benefits for the duration of an employee’s PFML-qualifying leave and avoid retaliating against an employee who has requested or is returning from a PFML-qualifying leave. Employers should be aware that any adverse employment action taken against an employee during leave or within 6 months of the employee’s return from leave is presumed to be retaliatory. Thus, if an employer disciplines, demotes, lays off, or otherwise disadvantages an employee shortly after they return from PFML, the law will assume the employer violated PFML unless the employer presents clear and convincing evidence of a legitimate, independent reason for undertaking those actions. The penalties for a PFML retaliation violation can include reinstatement, lost wages (tripled as liquidated damages), and attorneys’ fees. In practical terms, employers must be exceedingly careful with any personnel decisions involving an employee who has taken PFML. Consistent documentation of performance issues or business needs is essential to rebut any presumption of retaliation. It’s wise to consult legal counsel before terminating or significantly disciplining an employee who has exercised their rights under PFML.
Combining medical leave and bonding leave
Under PFML, a birthing parent may take up to 20 weeks of medical leave during pregnancy or following the birth of a child, and can follow that medical leave with up to 12 weeks of bonding leave, up until the annual cap of 26 weeks.
Key Distinctions Between PFML and FMLA—and Why They Matter
Concurrent leave
Because many leave events qualify under both laws, PFML and FMLA will typically run concurrently. In some instances, an employee will be eligible for one type of leave but not the other, such as where an employer is too small to fall under FMLA’s purview, the reason for leave qualifies under PFML but not FMLA (such as leave to care for an in-law with a serious health condition), or where FMLA leave has been exhausted. The PFML statute also precludes an individual from taking FMLA leave when the individual is not eligible for concurrent PFML leave. Thus, although an individual may be on PFML-only leave, they typically cannot be on FMLA-only leave.
Benefit year
Employers should be aware that PFML and FMLA have different definitions of what constitutes an employee’s “benefit year.” Under FMLA, the employer decides how it wants to set employees’ benefit years, which can be based on the calendar year, a fixed 12-month period (such as the employee’s work anniversary), a fiscal year, a 12-month period measured forward from when an employee takes FMLA leave, or a rolling 12-month period measured backward from when an employee takes FMLA leave. Under PFML, a benefit year commences when an employee first takes PFML-qualifying leave and continues for 52 weeks thereafter. The PFML benefit year can be triggered by an employee’s use of sick time, vacation time, or other employer-provided leave benefit, even if the employee does not submit a PFML application to DFML. Employers need to pay careful attention to DFML’s benefit year determinations, as those will dictate whether an employee has crossed into a new benefit year, which may result in replenishment of the employee’s leave allotment.
Paid vs. unpaid
While FMLA leave is unpaid, PFML provides wage replacement up to a weekly maximum. The maximum benefit is based on the state average weekly wage, which is updated annually. Employees whose normal income exceeds the maximum benefit amount are entitled to top of their benefits by using employer provided leave benefits (such as accrued PTO), such that the employee’s weekly gross pay is equal to what they would earn if they were not on leave. Employers cannot require employees to use their PTO during a PFML or FMLA leave.
Anti-retaliation
Unlike FMLA, PFML imposes a significant presumption of retaliation when an employer takes an adverse action against an employee close in time to when the employee takes leave or returns from leave. Typically, an employee who claims retaliation would need to prove that it is more likely than not that the employer’s conduct was motivated by retaliatory intent. In contrast, the PFML presumption of retaliation requires the employer to prove that they did not act with retaliatory intent, and they must meet a higher standard of proof – clear and convincing evidence.
Looking Ahead
PFML is a relatively new program and has been updated since it became effective in 2021. Employers should keep an eye on any changes to the statute and corresponding regulations, as well as court cases that provide insight on the application and interpretation of the statute.
Because PFML is so widely available and comes with paid leave benefits, employees are more likely to take advantage of PFML than they were when all that was available was unpaid FMLA. As a result, medical, family, and military leaves are more common and lengthier than they were before PFML went into effect, and employers are well advised to account for this when making decisions about staffing levels, productivity expectations, cross-training of employees, and use of temp workers and overtime.
Employers who proactively plan and educate themselves on these leave laws put themselves in the best position to reduce legal risks and minimize business disruption. Proper handling of leave requests – from timely notices and appropriate designation to avoiding retaliation pitfalls – will significantly lower the chance of disputes. It will also enhance trust and morale among employees, as workers who feel supported during major life events (like welcoming a child or coping with an illness) are more likely to remain loyal and return productively to work. On the flip side, mismanaging a leave can lead to costly litigation or the loss of a valued employee. With sound policies and a culture of support, navigating FMLA and PFML leave obligations becomes a manageable task that ultimately strengthens your workplace.
