PFML and the small business in Massachusetts

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Q: I operate a small business in Massachusetts (23 full-timers, 6 part-timers).  One of my employees has a mother who was just diagnosed with cancer.  This employee has been a problem since we hired her in February, 2023.  We should have given her some “tough love” but we didn’t.  She is not approachable.  Now she wants to take all of this time off.  How does this work with this new PFML?  Do I have to let her take this time?  Can I replace her?  What is my responsibility?  I have given out the PFML notices every year, but we really have not had to deal with this yet.  This law can crush a new business.  What if I have 10 employees who want to take this type of time off? 

A: In my opinion, smaller employers face enormous challenges when complying with the Paid Family and Medical Leave (PFML) in Massachusetts.  This law, effective January 1, 2021, allows eligible employees, along with other types of workers, to take paid time off for one or more of the following qualifying reasons:  to care for their own serious health condition, to care for a family member with a serious health condition, to bond with a child post-birth, adoption, or foster placement, to care for a family member who was injured while serving in the armed forces or to manage affairs while a family member is on active duty.

I consulted with Kathleen Berney, Senior Counsel at Hirsch Roberts Weinstein, a boutique labor and employment law firm in Boston.  Berney states “A small employer really does feel the operational pinch acutely when an employee is out for an extended leave under the PFML.  And of course, it’s exponentially worse for a small employer when multiple employees are out at the same time.  Unfortunately, the law doesn’t take that added burden into account.  An employee who qualifies for PFML, in your case due to the need to care for a family member with a serious health condition, is entitled to take up to 12 weeks of PFML if the leave has been approved by the Commonwealth’s Department of Family and Medical Leave.  The employee’s application for leave won’t be denied just because it’s a small employer with a number of co-workers already on leave.  An employee approved for PFML for their own serious health condition may be approved for up to 20 weeks with a maximum leave of 26 weeks in a benefit year.  That is a very long time out of work for any employer and undeniably difficult for smaller employers.”

Additionally, Berney explains that an employer must maintain health insurance benefits, if any, at the pre-leave level once an employee is on an approved PFML leave.  PFML also requires reinstatement at the end of the approved leave period to the previous or to an equivalent position with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave.  Berney further shares that the PFML applies “a legal presumption of retaliation for a six-month period after an employee exercises their rights under PFML” and explains that “an employer runs the risk of being accused of unlawful retaliation for taking a negative action against the employee” during that period. Further, Berney shares that “this is an unusual feature of any employment law.” In short, an employer should have a strong and complete record of documented performance concerns.  Berney recommends that any employer, large or small, use caution and consider consulting with counsel before taking any negative action against an employee returning from PFML or other job-protected leave.  This may include a demotion, suspension, disciplinary action or termination.

Without question, employers with a small workforce may struggle with compliance.  It is a lot to learn for a small business.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Jobs and the Boston Sunday Globe Money & Careers section.