Question

After attending the May AIM HR Roundtable roundtable and listening to the Department of Family and Medical Leave (DFML) director discuss the Paid Family and Medical Leave (PFML) law in detail, I still have some questions about the job protection, anti-retaliation section of the law. Could you review those provisions?

Answer

As DFML Director Bill Alpine mentioned at the May Roundtable much of this section of the law is yet to be reviewed in court, leaving employers to interpret the regulations to minimize legal risks. Much of the information used to answer this question comes from the DFML regulation 458 CMR 2.16.

Section 2.16 addresses job protection, retaliation, presumption and legal remedies. While some of the regulations are similar to the federal Family Medical Leave Act (FMLA), some aspects of the Massachusetts regulations impose different obligations on employers.

Job Protection

The job-protection section provides that if an employee takes leave under this law and returns to work within the approved leave period, the employee shall be restored to her or his previous position or to an equivalent position with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave.

Once the employee returns to work, the decision to take leave will not adversely affect an employee’s previously held right to accrue vacation time, sick leave, bonuses, advancement, seniority, length-of-service credit or other employment benefits, plans or programs.

Leave periods need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate.

The employee is entitled to continue employer-provided health-care benefits similar to any other active employee. The employee portion of employment-related health-insurance benefits shall be remitted by the employee in accordance with the employer’s uniformly applied policies or practices. Employers should notify the employee upfront about the procedure for submitting health insurance contributions.

There are several circumstances in which reinstatement is not required:

• When other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions during the employee’s leave. The employee retains any preferential consideration for another position to which the employee was entitled as of the date of leave.
• If the employee was hired for a specific term or only to perform work on a discrete project and that term or project is over and the employee would have otherwise had no ongoing expectations of a job.

Retaliation

It is illegal for any employer to threaten to retaliate or to retaliate by discharging, firing, suspending, expelling, disciplining, threatening or in any other manner discriminating against

• an employee for exercising any right to which such employee is entitled under the law or
• interfering with the exercise of any right to which such employee is entitled under the law.

It is also illegal for an employer to retaliate as described above against an employee who has:

• filed a complaint or instituted or caused to be instituted a proceeding under, or related to, this anti-retaliation provision, or
• has testified or is about to testify in an inquiry or proceeding or has given or is about to give information connected to any inquiry or proceeding relating to this provision.

However, an employer may:

• reasonably communicate with an employee who is approved for leave benefits, and
• require an employee who has been approved for PFML to comply with reasonable attendance and call-in procedures established by the employer.

An employee on intermittent leave:

• must work with the employer to try to take leave so as not to unduly disrupt the employer’s operation.
• may be subject to employer discipline for failing to work at the times agreed to.
• may be subject to employer discipline for failing to return to work or to the employee’s regular work schedule following the leave.

Presumption

Retaliation will be presumed when there is a negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee:

• that occurs any time during a leave taken by an employee or during the six-month period following an employee’s leave or restoration to a position; or
• who has participated in proceedings or inquiries pursuant to the regulations within six months of the termination of proceedings,

An employer may rebut the presumption of retaliation only by presenting clear and convincing evidence that the employer’s action was not retaliatory and that the employer had:

• sufficient independent justification for taking such action; and
• would have in fact taken such action in the same manner and at the same time the action was taken, regardless of the employee’s use of leave, restoration to a position or participation in proceedings or inquiries.

An employer’s application of a pre-existing employment rule or policy will be deemed to be clear and convincing evidence. To counter the presumption of retaliation, it is important to have clear policies that are communicated to employees and uniformly enforced.

The law presumes it is not retaliation if an employer, in good faith, notifies the DFML of a situation where it believes an individual is seeking benefits fraudulently.

Civil Actions

An employee or former employee has up to three years to bring a civil lawsuit in Superior Court enforcing actions in the statute, including a claim for retaliation.

AIM members may discuss this or any other human resources issue by calling the Employer Hotline at 800-470-6277.