Start Planning Now for Massachusetts PFML Anti-Retaliation

By The CIP Group

April 6, 2021

Come next January, the Massachusetts Family and Medical Leave law continues its implementation as paid family leave benefits will be available to support workers who take leave in order to bond with a new child and paid medical leave benefits will be available to support workers who take leave as a result of personal serious health conditions.

With this phase of implementation also comes the prohibition against employer retaliation for having taken leave. Employers are prohibited from interfering with an employee’s rights under the law or retaliating against an employee for exercising the employee’s rights.

Under the law, there is a rebuttable presumption of retaliation if there is any negative change to an employee’s status or adverse action against the employee during the leave or within six months of the leave. To rebut, the employer must have “clear and convincing evidence” that the action was not retaliation and that the employer had “sufficient independent justification” for taking that action and “would have taken such action in the same manner and at the same time the action was taken.”

So how is this accomplished?

What this seemingly simple provision is begging you to do isn’t necessarily to implement new rules, or a comprehensive new handbook – although you may want to do so for many reasons. It is recommending you apply the policies you probably already have, take consistent action around them, and document their application. This is just good management practice, but as the regulatory and legal landscape becomes more complex, the more important good HR practice becomes.

Clear and convincing evidence” is a legal standard of burden of proof. It means that the evidence presented must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality, which is a greater degree of believability than the more common standard of proof which only requires that the facts be shown to be more likely than not to be true.

Additionally, under the law an individual may bring a civil action in Superior Court for an alleged violation of the anti-retaliation, job restoration and continuation-of-benefits (e.g., right to accrue vacation and other benefits, and continuation of healthcare benefits) provisions in a jury trial. The action must be brought within three years of the alleged violation. Unlike claims under Civil Rights Claims or the Massachusetts Wage Act, there is no administrative filing requirement.

This means starting now, documenting your policies, practice and employee discipline can pay benefit in an unforeseen circumstance years from now: documenting your reaction to infractions now may help defend your future action three years after it happens. Remember, your burden is to be highly and substantially more probable to be true than not.

This is good practice in any event, and while civil rights law typically includes anti-retaliation provisions, this law is more specific about timelines. Even if disciplinary action occurs within the six-month period, employers appropriately justifying the adverse action with “clear and convincing evidence” can be well positioned against a retaliation complaint.

Taking a leave of absence under the PFML, doesn’t insulate an employee from legitimate discipline. However, employers will want to carefully review plans to discipline an employee recently-on or continuing-on leave to avoid the appearance of bias or retaliation. “Clear and convincing”

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