Avoid the pitfalls
Tim Netkovick calls it the “kicker” in the law – and it’s a kick that could hurt an unsuspecting employer.
The law in question is the state’s new Paid Family and Sick Leave (PFML) Act, parts of which went into effect on January 1, with others due to follow on July 1. The law essentially makes Massachusetts the most generous state in the country when it comes to giving workers leave for medical and family reasons.
And employers need to be careful about how they respond to claims, said Netkovick, an attorney for the Royal Law Firm in Springfield.
“If someone has used PFML, there is a kicker in this act that says that if an adverse action is taken against the employee within a certain period of time, it will be considered retaliation,” he told BusinessWest.
If an employee contests an employer’s actions after a vacation under the PFML Act, the company must prove that there was a legitimate reason for taking the negative action unrelated to the vacation request.
“The law contains a very strong anti-retaliation provision. Often times these types of laws have an anti-retaliation provision, but it’s a little unique, ”said John Gannon, attorney at Skoler, Abbott & Presser in Springfield.
“If an employer takes any negative action against the employee – termination, suspension, demotion, or even a negative performance assessment – within six months of the last day they took their vacation, the presumption is that the employer was retaliatory has, ”he explained. “The employer can rebut this presumption by showing that the motive for the decision is in no way related to taking paid family or sick leave, but it does open the door to further potential litigation in this area.”
It is a challenge to prove that the action is justified, but not impossible, said Netkovick. Still, it’s not a headache that employers really want to grapple with.
“It’s a challenge we’ve seen a couple of times, where there were previously employment issues and then suddenly someone goes on PFML vacation,” he said. “There aren’t really a lot of instructions yet. It might be assumed to be retaliation, but hopefully if you can show something specific about what happened you can get someone in court to agree with you. You have to make sure that your documents are in order. “
The PFML Act coincides with other applicable state and federal vacation laws, such as the Federal Family and Sick Leave Act (FMLA) and the Massachusetts Parental Leave Act. Similar to the federal FMLA, a Massachusetts employee who returns to work after taking PFML vacation leave must be returned to the same or similar position as they were in prior to their vacation.
The new law obliges employers to grant eligible employees up to 26 total weeks of vacation in one performance year. Currently, workers are entitled to up to 20 weeks of paid vacation to manage their own severe health condition, and can also get up to 12 weeks of paid vacation to bond with a newborn, adopted, or fostered child, and up to 26 Weeks for caring for a relative in the armed forces.
Starting July 1, employees can also be given up to 12 weeks to care for a family member – spouse, domestic partner, child, parent, sibling, grandparent, parent of a spouse, or parent of a domestic partner – with a serious health condition.
“There’s a department called the Department of Family and Medical Leave that oversees this whole program and approves and denies applications,” Gannon said. “They did a pretty effective job promoting this program, especially in 2020 and early 2021 when it went live. I remember seeing radio ads, print ads, and lots of online ads. “
As a result, employees tended to know about it, and many held off, for example, elective surgeries or parental leave for a newborn baby until after January 1, so they could take full advantage of the new law, he noted. “We saw a tip [in taking leave] in January and February, and we expect to see another spike in July or August of this year when the family vacation components are up and running and employees can take vacation to care for family members with serious health problems. “
An increasing need
Patrick Leary, vice president of work benefits research at LIMRA in Windsor, Connecticut, noted that interest in PFML increased a few years ago but has accelerated in recent years, especially last year.
“More people became caregivers for their parents or other family members affected by COVID,” Leary said. “In addition, parents took time off to look after their children when they stayed home through distance learning.”
Peter Miller, a partner at Millbrook Benefits and Insurance Services in Springfield, added that the Massachusetts PFML Act provides benefits similar to short-term disability benefits, but does not replace the need for employers to offer short-term disability insurance.
Vacation under the PFML program applies to most W-2 employees in Massachusetts, whether they are full-time, part-time, or seasonal. Unlike the federal FMLA, the Massachusetts PFML Act states that an employee is not required to work a minimum amount of time in order to be eligible for vacation. However, an employee must meet minimum earnings requirements to be eligible for vacation leave under the law.
Information requirements for the new law apply in both directions; Employers must notify all employees in writing of the PFML program within 30 days of the employee’s entry date, while employees must notify their employer of their statutory vacation needs at least 30 days prior to the start of vacation and prior to filing a vacation request with the state. If reasons for which the employee is not responsible prevent him from giving such advance notice, he must inform his employer as soon as possible.
Employers do not have to offer their employees state benefits; They can opt out and request exemption from paying PFML contributions, but only if they purchase a private plan that is as generous as the state plan and offers the same level of job security, including anti-retaliation provisions.
“You have two options – you can contact the state Department of Family Leave they set up, or you can have your own external administrator,” said Netkovick. “The private plan has to be designed to be consistent with the state plan. It doesn’t have to be better, but at least it has to be in line with the state plan. “
One reason a company might do this is because a third party benefit manager has offered the service and the employer may prefer to communicate with that company rather than negotiate with the state.
Gannon agreed. “One of the perceived benefits of private plans is that you have a little more control over the management of the plan,” he said, noting that it can be frustrating when the government does something wrong – for example, when an employee does something about a Administrative error, to give a hypothetical example, was granted instead of 20 weeks vacation.
“There is nothing you can do about what is frustrating for employers,” he told BusinessWest. “For private plans, at least in theory, you can go to the plan administrator and ask, ‘Why did you approve this for 22 weeks instead of 20 weeks?’ It’s more difficult with the state. “
One thing is clear: by allowing workers to take as much leave as is not the norm across the country, the state is facing an additional workforce challenge at a time when companies in countless industries are already threatened by labor shortages.
“If the State Department or your external administrator determines that this person is qualified under PFML, there really is not much you can do,” said Netkovick. “I know this has caused personnel problems for some of our customers, but they were able to resolve it. If there is a mandatory quota I imagine this will become a problem – you may have to hire people temporarily. “
Gannon agreed that this can be a hurdle, especially since employees are entitled to vacation from the first day they work.
“It was a challenge from a personnel point of view, especially these days,” he said. “Without all of these job-protected vacation forms, staffing would be a challenge, and now we have PFML too.”
Know the facts
An important requirement of the PFML Act is that employers must put it in writing for their employees.
“It doesn’t have to be in the manual, but it has to be in writing and let people know about their rights under PFML and the qualifications,” said Netkovick, adding that some companies put it in the manual because they were the manual anyway revise. “But others have made it a stand-alone policy that everyone has to sign.”
Gannon has also seen employers approach communication in different ways. “We’ve had customers completely updating their manual not just to make sure they are complying with this law, but to see if other policies need to be changed,” he said, like giving an employer enough time to manage absences from a staffing perspective .
Of course, these written guidelines must also clarify the anti-retaliatory elements of the law. If an employee files a lawsuit against an employer for violating the PFML Act and the violation is found, the employee has a number of remedies available, including reinstatement in the same or a similar position, three times lost wages and benefits, and even the employee’s legal fees.
That’s why it’s particularly important to train managers and supervisors on all aspects of the law, Gannon said. “They are the ones who may not realize the strength of the anti-retribution rule. Depending on the size of the company, an employer can rely on managers and supervisors, and if they unwittingly take revenge on someone, it can be a problem for the entire organization. It is important for those in a supervisory or managerial position to understand the law and how strong these anti-retribution rules are. “
Netkovick agreed, adding that annual training on all aspects of labor law, including paid family and sick leave, would be a good idea.
“Businesses need to be aware of this retaliation regime – I think that’s key,” he said. “It’s worth keeping this in mind at the beginning so that you know what the land is like in case something turns up later.”
Joseph Bednar can be reached at [email protected]
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