Question

We have an employee who has been underperforming for more than a year.  His manager would like to fire him, but I understand he could file a claim for retaliation after taking a Paid Family and Medical Leave (PFML).  He returned about a month ago from an eight-week leave for a medical condition.  We are covered by the Family and Medical Leave Act (FMLA), so the leave was designated under both PFML and FMLA.  Will this get us into trouble?

Answer

You are right to be leery of firing him, as both the Massachusetts Paid Family and Medical Leave (PFML) and the federal Family and Medical Leave (FMLA) laws include anti-retaliation provisions.  The PFML law even creates a presumption of retaliation when a termination or other adverse employment action occurs within six months of an employee’s leave.

Although the PFML has eclipsed the FMLA when it comes to the preferred leave of absence, it is helpful to look at retaliation under the FMLA as well.

To succeed with a claim of retaliation under the FMLA, the employee must show that

• He availed himself of a protected right under the FMLA;
• He suffered an adverse employment action; and
• ‘There is a causal connection between the employee’s protected activity and the employer’s adverse employment action.’

Once that is established by the employee, the employer must present its justification for the adverse employment action.  The burden then shifts back to the employee to prove that the employer’s stated reason is a pretext for retaliation.

Because the FMLA has been in effect since 1993, there is a wealth of case law and agency decisions on FMLA retaliation.  Claims under the FMLA may be brought with the federal Department of Labor (DOL) Wage and Hour Division.  Of the 779 FMLA claims filed with the DOL in Fiscal Year 2022, 70 percent were claims of retaliation.   Of all claims filed, 40 percent resulted in a finding of an employer violation.

Likewise, court cases for FMLA retaliation have mixed outcomes.  One recent federal case involved an employee who took intermittent leave for his serious health condition, supported by medical certification indicating that he would be absent approximately four days per month.   The employee was fired pursuant to an attendance policy that called for termination after the third unexcused absence.  The court found that the employee’s complaint raised legitimate questions about the employer’s haphazard attendance records – factual questions that should be decided by a jury.

Next, we look at the employee-friendly presumption of retaliation in the state PFML  law and regulations (M.G.L. c. 175M; 458 CMR 2.00).  The statute provides that “any negative change” in the employee’s “seniority, status, employment benefits, pay or other terms or conditions of employment” that occurs during the leave or within six months after the leave “shall be presumed to be retaliation.”

The presumption may be rebutted by producing “clear and convincing evidence” that the action was not retaliation, and that the employer had “sufficient independent justification” for its action and would have taken the action regardless of the employee’s use of PFML leave.  Note that “clear and convincing” is a higher standard of proof than in civil litigation, where a “preponderance of the evidence” (more likely than not) is the usual standard.

The PFML regulations further clarify that “an employer’s application of a preexisting employment rule or policy shall be deemed to be clear and convincing evidence” that the employer’s actions were not retaliatory, which puts significant weight on an employer’s consistent enforcement of its rule or policy.

The PFML’s retaliation provisions are yet untested in Massachusetts courts, in published opinions at any rate.  We will have to wait for a court opinion since retaliation claims may not be brought to the Department of Family and Medical Leave or the Attorney General’s office. Although the presumption and the six-month span indicate a stricter prohibition on retaliation, a claim will follow a similar analysis as an FMLA case, with the employer having to demonstrate that its action was taken for reasons unrelated to the employee’s leave and that the employer followed its own rule or policy.

It is not yet clear how this will play out in courts, but it is fair to say that the employee has a significant advantage with the rebuttable presumption of retaliation.

Review the grounds for your employee’s termination.  Is the termination based on a rule or policy? Is it a well-established and uniformly applied rule or policy? Have you tried everything possible to help the employee to improve his/her performance?  Review the employee’s performance record for completeness and clarity and be certain that you would proceed with a termination regardless of the employee’s PFML leave.

AIM members with questions about retaliation under the PFML or the FMLA may call the AIM Employer Hotline at 800-470-6277.