Many businesses have been in survival mode these last several months because of the circumstances created by COVID-19. On the legal front, new laws and programs like the Families First Coronavirus Response Act (FFCRA), the Paycheck Protection Program (PPP), and various COVID-19-related safety and health guidelines have been in the spotlight.
However, non-COVID-19 legislative changes continue to march onward. The most significant update on the horizon for Massachusetts employers and employees is the roll-out of the Commonwealth’s Paid Family and Medical Leave (PFML) law (M.G.L. c. 175M). Contributions for this program started in October 2019, but the benefits become available for use by employees on Jan. 1, 2021. Below is a basic refresher on the program, and a special word of caution about the law’s strict anti-retaliation provision.
The amount of leave provided for an employee depends on the nature of the leave.
Paid Family Leaves
The nature of paid family leaves are as follows:
- The birth, adoption or foster care placement of a child (12 weeks available);
- A qualifying exigency arising out of the fact that a family member is on active military duty or has been notified of an impending call to active duty in the Armed Forces (12 weeks available);
- Care of a family member who is a covered service member (26 weeks available); and
- Care of a family member with a serious health condition (12 weeks available, though not available until July 1, 2021).
Paid Medical Leave
The nature of this leave is an individual’s own serious health condition that incapacitates them from working (20 weeks available).
Applying For Leave
PFML is being administered through the newly-established Department of Family and Medical Leave. Although the department is new, it appears to be modeled to some extent on the Department of Unemployment Assistance. For example, the amount of benefits for which employees are eligible to receive is based on their average weekly wage, which has the same definition as provided in the unemployment insurance statute (M.G.L. c. 151A). No application or online portal is available yet, but the department’s website (https://www.mass.gov/orgs/department-of-family-and-medical-leave) is being updated on a regular basis.
Alternatives To Benefits Administration
As a reminder, employers can apply for an exemption from required PFML contributions by offering an approved private plan with paid leave benefits that are equal to or more generous than those provided by the Commonwealth’s plan. Two types of plans can qualify for an exemption: (1) a self-insured plan funded by an employer (which may be administered by a third-party administrator); and (2) a fully insured paid leave private plan offered by an insurance carrier licensed by the Mass. Division of Insurance.
Applying for a private plan exemption may be financially beneficial and also be more administratively seamless, especially if your company already offers short-term and/or long-term disability group insurance to its employees, If you have not yet explored these alternatives, consider consulting your insurance broker to review your options.
Presumption Of Retaliation For Adverse Employment Actions
Like other leave and anti-discrimination statutes, the PFML law includes an anti-retaliation provision, which makes it unlawful for employers from taking adverse actions against employees in retaliation for exercising their rights under the PFML law. However, the language of the PFML law is unusually strict. As such, employers should be especially cautious to take negative actions against employees returning from PFML leave.
A typical retaliation case involves a three-stage burden-shifting framework. First, the employee has the burden of proving a retaliation claim by a preponderance of the evidence. Retaliation claims vary slightly depending on the underlying statute but, broadly speaking, an employee must show that he/she engaged in some protected activity, that the employer took some adverse action against him/her, and that there was a causal connection between the protected activity and the adverse action. Importantly, “preponderance of the evidence” is the usual standard of proof in a civil case, and can also be described as “more likely than not.” If the employee meets this initial burden, the burden shifts to the employer, which must articulate some legitimate, non-retaliatory reason for the adverse action (e.g., the employee was a chronically poor performer). If the employer’s explanation is satisfactory, the burden shifts back to the employee again, and the employee must show – again, by a preponderance of the evidence – that the reason offered by the employer was not the real reason for the adverse action, but was a pretext for retaliation.
In contrast, the PFML law presumes “any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee which occurs any time during a leave taken by an employee… or during the 6 month period following an employee’s leave or restoration to a position pursuant to this section” to be retaliation. See M.G.L. c. 175M, s. 9(c). As such, under the language of the statute, in order to pursue a retaliation claim against the employer, an employee need only demonstrate that he/she suffered a “negative change” either during his/her PFML, or within the six months following the PFML. The final regulations clarify that a “negative change” “shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work.” Even so, to rebut that presumption, the law provides that the employer must provide “clear and convincing evidence” that it had “sufficient independent justification” for the negative change. Notably, “clear and convincing evidence” is a significantly higher burden of proof than “preponderance of the evidence.” It means highly and substantially more likely to be true than untrue.
Moreover, per M.G.L. c. 175M, s. 9(d), an employee may pursue a retaliation claim within three years of the alleged violation in the Superior Court, is entitled to a trial by jury, and may pursue all remedies available in common law tort actions. The statute also specifies that the court may take the following actions:
- Issue temporary restraining orders or preliminary or permanent injunctions to restrain continued violations of this section;
- Reinstate the employee to the same position held before the violation or to an equivalent position;
- Reinstate full fringe benefits and seniority rights to the employee;
- Compensate the employee for 3 times the lost wages, benefits and other remuneration and the interest thereon; and
- Order payment by the employer of reasonable costs and attorneys’ fees.
These anti-retaliation provisions have not yet been tested in court but, as written, are very favorable to employees. To mitigate risk, employers should tread lightly and work closely with counsel if they intend to terminate an employee, or take some other negative action against an employee, in a time frame that triggers a presumption of retaliation under the PFML law. A misstep could expose the employer to significant legal risk.
This article barely scratches the surface of the PFML law. Business owners and human resources professionals should familiarize themselves with the provisions of the law and consult their legal counsel and insurance brokers for guidance on compliance.
Kathleen R. O’Toole, Esq., is a Centerville native, Dorchester resident and attorney at the Boston law firm of Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP. Feel free to send questions to kotoole@connkavanaugh.com.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP or its attorneys.
