MA PFML: Avoiding Costly Penalties for Retaliation and Discrimination

Employees have been able to take leave under MA PFML since January 1^st of this year. However, employers may just now be experiencing the effect. Perhaps their employees have recently submitted their notice to apply for Massachusetts PFML, or perhaps they’re returning from their leave. Either way, managers need to be aware of an important portion of the law: the employee protections against retaliation and discrimination. MP’s HR services experts share what the law says and some HR best practices employers can use to protect themselves. They’ll also share specific examples of actions that can (some surprisingly) be considered retaliation or discrimination per MA PFML law.

What is MA PFML and Discrimination and Retaliation?

Under the law, employees who take MA PFML are protected from any adverse actions or negative changes in their status either during the leave or with six months of its completion. An employer will need to provide “clear and convincing evidence” to prove that an action during this time period was justified and not retaliation or discrimination for the employee taking MA PFML leave. Employees are required to make their accusations of discrimination or retaliation within three years of the alleged violation. The process doesn’t require an administrative filing requirement, unlike a Civil Rights claim or a claim of a violation of the Massachusetts Wage Act.

4 Steps Employers Can Take to Protect Themselves.

Any employers subject to MA PFML, and this includes employers that aren’t located in MA but have employees who work there, should be taking a few important steps to protect themselves.

1. Create a policy: MP HR and payroll experts suggest creating employee policies that clearly define the company’s procedures for MA PFML. These policies should include a portion that states that employees are protected from any retaliation or discrimination for taking MA PFML. This would include bigger actions, like termination or suspension. It could also include smaller actions, like changing the employee’s schedule, disciplining them for lateness when others are not, etc.
2. Obtain acknowledgement of the policy: Share the policy, then add a section that requires a signature of acknowledgement. Employers should keep this acknowledgement on record. (If an employer uses HCM software like MP’s, it will all be stored in the same HR platform with other employee data and very simple to access.)
3. Train managers: Perhaps the most crucial step will be to train managers on MA PFML and its discrimination and retaliation protections. Managers should be trained to document all disciplinary actions, as well as any possible reduction in status for the six months after an employee’s leave. For example, if an employee requests to come back to work part-time, their manager should document this request so that it cannot be deemed retaliation for taking PFML leave.
4. Create a process and record-keeping system for documentation: Since the documentation process creates extra work, creating a process and record-keeping system will help to streamline the workflow for managers. It will also help to ensure that everyone records and saves the information in the same place. This will ensure that the information will be easily accessible to reference in the future.

Examples of Possible MA PFML Discrimination or Retaliation Concerns:

Employers should know that many actions, big or small, could be perceived as retaliation or discrimination for using MA PFML benefits. Some of them are surprising and may seem wholly unrelated to an employee taking leave. They may not even seem like negative changes in status.

Here are some examples:

• The employee returns from PFMLA to a different shift or shorter schedule—even if they requested it
• The employee returns from PFMLA and is transferred to a different work location
• The employee is disciplined for minor infractions, such as being 5 minutes late
• The employee is disciplined for something that other employees are not
• The employee is passed up for a promotion
• The employee is transferred to a new location that isn’t as easy for them to commute to
• The employee is transferred to a location that isn’t as successful or limits their earning potential