Practice Area:

Leave Laws – FMLA and PFML

OVERVIEW:

Leave Laws – FMLA and PFML

As the demands and time commitments of jobs in any industry rise, employees in Massachusetts face increasing challenges in balancing career and family. Many parents work full-time yet want to play an active role in having and raising children. Plus, with Americans living longer, many people care for aging loved ones. Of course, your own personal medical issues can also arise at any time and affect your ability to focus on your job. Fortunately, both federal and Massachusetts law provide protections that can help alleviate some of the pressures of work and home life when you are faced with a medical event. Unless you fully understand the complicated legal landscape, however, you may not know your rights and how to address them.

There are two main leave laws that protect Massachusetts employees if they need to be away from work for a qualifying reason. The federal Family Medical Leave Act and the Massachusetts Paid Family Medical Leave Act.

Summary of the Family Medical Leave Act

The Federal government enacted the Family Medical Leave Act (FMLA) in 1993 to extend certain rights to eligible employees who need to leave work for qualifying reasons. The US Department of Labor’s (DOL) Wage and Hour Division is tasked with administering the law, issuing relevant regulations, and enforcing FMLA provisions. Generally, you are entitled to job protection and unpaid leave.

The key aspects of FMLA involve:

Who is an eligible employee?
What is a qualifying reason for taking leave from employment?
Which employers must comply with FMLA?

Under the FMLA, qualified employees may take 12 work weeks of leave in a 12-month period. The leave may be intermittent meaning that it does not all have to be taken at once. Note that the law does not require your employer to pay you during this time. FMLA safeguards your job and allows you to continue with group health insurance coverage provided by your employer under the same terms and conditions as if you had not been away from work. At the end of your leave, you are entitled to be restored to your job (or a similar job) at the same rate of pay.

Book a Quick Consult

Eligibility for Leave under FMLA

Not all employees are eligible to take leave under FMLA, and you must qualify under the law’s specific criteria:

- You must have worked for a covered employer for at least 12 months. Your employment does not have to be 12 consecutive months, but being away from your position for seven years or more causes the employment length to reset to zero months for the purpose of the FMLA.
- You must have worked a minimum of 1,250 hours during the relevant 12-month period before you take FMLA leave. Your “hours of service” are measured by the time you actually worked, not including vacations, sick days, holidays, or other situations where you were not acting in a work capacity.
- You must work for a qualifying employer. In the private sector, this means one that retains 50 or more employees, every working day of the preceding calendar year, within a 75-mile radius of the relevant location.

Qualifying Reasons to Take FMLA Leave

Even if you meet the relevant employment eligibility requirements, your purpose for taking leave must also be covered by FMLA regulations. Qualifying reasons include:

The birth of a child and care for the infant during their first year;
Circumstances surrounding adoption, including going through adoption placement and foster care, and to provide care for the child during the first year of placement;
A serious medical condition that prevents you from doing your job;
Caring for your spouse, child, or parent who is suffering from a serious health condition; or,
Certain circumstances that arise when a spouse, child, or parent leaves for covered active duty as a member of the military.

Note that you may qualify for more time off, up to 26 work weeks in one year, if you are caring for a member of the military who suffers from a serious injury or illness. For the military caregiver option, the person must be your spouse, child, parent, or you must be their next of kin.

There are some critical definitions involved with the qualifying reasons under FMLA and they can be very case-specific. For instance, if you request leave for your own medical reasons, you must have a “serious health condition” that makes it impossible to perform the essential tasks of your job. In addition, a recent DOL rule amends the definition of “spouse” to include individuals in legal, same-sex marriages. Because of the nuances of FMLA language, eligible reasons for taking leave can appear to be convoluted. Consult with one of our attorneys if you would like to know your rights and how FMLA can apply to your specific situation.

Paid Family Medical Leave

Benefits under the new Paid Family and Medical Leave (PFML) law took effect beginning in January 2021. Under the law, most employees, and even some independent contractors, are entitled to up to 12 weeks of paid leave to care for a family member who has a serious health condition or to bond with a new child. Eligible employees may also receive up to 20 weeks of paid leave to deal with their own serious medical condition. Leave benefits are also available for employees who are affected by a qualifying exigency arising out of a family member’s active duty or impending call to active duty in the Armed Forces. Benefits are paid by the Commonwealth, so employees must apply through the Department of Paid Leave to receive benefits. There is a maximum benefit period of 26 weeks. PFML coverage must run concurrent with leave taken under the federal; Family and Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) and Massachusetts Parental Leave Act (M.G.L. c. 149, § 105D).

Paid Family Medical Leave is funded by taxes – paid by employees and employers. Employees should tell their employer that they intend to apply for leave. If your employer does not follow PFML law, of if you are treated differently by your employer for taking leave under the PFML, you have rights. If your job is not protected (i.e., you are fired, or demoted), or if you face retaliation or discrimination (i.e., your best accounts are taken away, or your employer otherwise treats you differently than your colleagues), you can bring a lawsuit within three years of the violation.

Perhaps most importantly, the law states that 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 shall be presumed to be retaliation.

Take Action for an FMLA or PFML Violation

If you are an eligible employee with a qualifying reason for taking leave under FMLA or PFML, and give proper notice as required by law, you do have rights in the event of a violation. Whether you were denied leave, disciplined for using it, or fired while you were away, your options may include:

Reaching out to your employer, a manager, or human resource department to discuss your concerns;
Filing an administrative complaint with the DOL;
Mediation or alternative dispute resolution;
Filing a lawsuit against your employer.

As potential remedies, you may be able to get your job back, retain insurance coverage, or other means of putting you in the same position as if you did not take leave. It may also be possible to seek monetary damages for back pay and other losses.

Leave Laws Links & Resources

Family and Medical Leave Act (FMLA)

Home page for resources provided by the Wage and Hour Division of the Department of Labor about FMLA.

https://www.dol.gov/agencies/whd/fmla

Paid Family and Medical Leave (PFML)

Home page for resources provided by the Department of Family and Medical Leave.

https://www.mass.gov/info-details/paid-family-and-medical-leave-pfml-overview-and-benefits

FMLA

Resource provided by the Department of Labor explains the rights afforded to certain workers by the Family and Medical Leave Act as well as which employees are entitled to these benefits.

https://www.dol.gov/general/topic/benefits-leave/fmla

FMLA: Fact Sheets

Provides links to all the fact sheets relating to FMLA provided by the Department of Labor Wage and Hour Division.

https://www.dol.gov/whd/fmla/fact_sheets.htm

Title 29 Subtitle B Chapter V Subchapter C Part 825

This is the complete language of the Family and Medical Leave Act of 1993.

https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-C/part-825

Elaws Family and Medical Leave Act Advisor

This is an online tool provided by the Department of Labor’s Wage and Hour Division which, by answering questions via links, helps to determine eligibility for FMLA.

https://webapps.dol.gov/elaws/fmla.htm

FMLA Leave

Page provided by the Massachusetts government giving an overview of FMLA. Adds some additional detail on military-related situations.

https://www.dol.gov/agencies/whd/fmla

Statistics

During the 2017 fiscal year, there were 1,165 complaints to the Department of Labor Wage and Hour Division. 50% of these claims were found to have been violations.[1]
225 of these complaints were for refusal to grant FMLA leave.[2]
122 of these complaints were for refusing to restore an individual returning from leave to an equivalent position.[3]
493 of these complaints were due to termination resulting from taking FMLA leave.[4]
11 of these complaints were due to failing to maintain health benefits for an individual on FMLA leave.[5]

For the 586 complaints that were validated as violations from the 2017 fiscal year, there were 634 affected employees and $1,481,952 in back wages.
91% of employers stated that obeying the FMLA has had no negative effect on employee absenteeism, turnover and morale.[7]
85% of employers relayed that they have no difficulty with following the rules stated in the FMLA.[8]
Almost 60% of employees qualify for benefits under the FMLA.[9]
13% of workers reported taking FMLA leave in the past 12 months.[10]
Less than 2% of employers required to follow FMLA reported misapplication of FMLA.[11]
42% of leave under FMLA is for 10 days or less and only 17% had a duration longer than 60 days.[12]

48% of employees said they received the entirety of their pay while on FMLA and an additional 17% were given a portion of their pay.[13]
78% of individuals returned to work because they no longer needed the leave. Another 40% returned to work due to an inability to afford continued leave.[14]
5% of employees said that they needed to take leave but were unable to.[15]
Leave for the employees own medical issue made up 55% of the reasons for taking FMLA leave.[16]
Leave for pregnancy or a new child made up 21% of the reasons for taking FMLA leave.[17]

Leave for a medical issue of a relative made up 18% of the reasons for taking FMLA leave.[18]

[1] https://www.dol.gov/whd/data/datatables.htm

[2], [3], [4], [5], [6] Ibid.

[7] https://www.dol.gov/whd/fmla/survey/

[8], [9], [10], [11], [12], [13], [14], [15], [16], [17], [18] Ibid.

Consult with a Massachusetts Attorney Regarding Taking Leave under FMLA or PFML

For more information on FMLA eligibility and other leave laws, please contact us. Our lawyers have more than seven decades of combined experience in employment matters, and we are here to help. The attorneys at Rodman Employment Law have in-depth knowledge in the laws that provide you with certain rights if you need to take leave from work, and we have extensive experience in protecting them.

Our team can explain the complex eligibility rules and prerequisites under the Family and Medical Leave Act and state law, and we assist with completing necessary paperwork. Please call (617) 820-5250 or visit our consultation page to schedule a consultation.

Leave Laws – FMLA and PFML