Question

We have a mostly male workforce and many of our employees have taken advantage of Paid Family and Medical Leave (PFML) for bonding with a child.  Several men reporting to the same manager have requested only two or three weeks of bonding leave after the birth of a child, rather than the full 12 weeks, and they have confidentially indicated that they believe their manager would be unhappy if they took a longer leave.  If the manager openly discourages PFML leave, could that be setting the company up for a lawsuit?

Answer

You are right to be concerned about this.

The Paid Family Medical Leave Act (PFML, M.G.L. ch. 175M) clearly states that “[f}amily leave shall be available to any covered individual . . . to bond with the covered individual’s child during the first 12 months after the child’s birth or the first 12 months after the placement of the child for adoption or foster care with the covered individual.”    The law also makes it clear the leave allotment is for up to 12 weeks during that 12-month period. Bonding leave is available to any new parent and is not gender specific.

If the manager is inhibiting use of the leave, it may be a violation of the anti-retaliation provisions of the PFML.  Section 9(a) of the PFML provides that “ [i]t shall be unlawful for any employer to retaliate by discharging, firing, suspending, expelling, disciplining, through the application of attendance policies or otherwise, threatening or in any other manner discriminating against an employee for exercising any right to which such employee is entitled under this chapter or with the purpose of interfering with the exercise of any right to which such employee is entitled under this chapter.”

The PFML’s anti-retaliation provision, Section 2.16 of the PFML regulations, also creates a presumption of retaliation if there is “[a]ny negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment” during an employee’s leave or for six months thereafter.  This is an onerous presumption to overcome, and it signals that there will be little tolerance for employers who prevent employees from enjoying the full benefit of the PFML.

Even if the manager is just expressing his frustration about staffing challenges and it does not lead to a denial of leave, it could result in liability for the company.  Because the PFMLA leave has only been available since 2021, there is no legal precedent addressing its anti-retaliation provision.  However, there is precedent under the federal Family and Medical Leave Act (FMLA) supporting an employee’s claim of retaliation when leave was discouraged but ultimately not denied.  As the FMLA has anti-retaliation language very similar to Section 9(a) of the PFML, it is possible that a Massachusetts court would find a PFML violation in the manager’s behavior.

Another potential theory of liability might be discrimination based on sex under the Massachusetts Fair Employment Practices Law (M.G.L. ch. 151B).  Under Section 4 of chapter 151B, it is an unlawful practice for an employer to discriminate against an employee on the basis of sex “in compensation or in terms, conditions or privileges of employment.”  If the manager is more accepting of female employees taking bonding leave under the PFML, such disparate treatment could be discriminatory toward the male employees.

The PFML grants an important right to your employees. Be sure that your managers understand that any denial or attempted denial of that right is risky for your company.  A PFML leave can create challenging staffing issues, particularly for a small business.  But it is important that managers refrain from expressing their disapproval as it could lead to a much bigger problem.

AIM members with questions about managing PFML leave or any other human resource issue may call  the AIM HR Helpline at 800-470-6277.