For the past several years, there have been several legislative proposals to provide state family and medical leave protections for New Hampshire employees. So far, the legislature has not enacted this type of employee benefit, but Massachusetts just did.
The Massachusetts Paid Family and Medical Leave Act (PFMLA) went into effect January 1, 2021. The PFMLA expands on the leave rights offered by the Federal Family and Medical Leave Act of 1993 (FMLA) in several ways. Covered employers include all Massachusetts businesses, not just businesses with fifty (50) or more employees covered under the FMLA. Covered employees include not just employees covered under the FMLA who have been employed at least a year and who have worked at least 1,250 hours in the preceding twelve (12) months, but all W-2 workers, as well as self-employed individuals and 1099-MISC workers who work in Massachusetts, who make up more than 50% of their employer’s workforce, and who do not qualify as independent contractors.
The PFMLA also offers longer leave periods in certain circumstances than the FMLA provides. An employee taking leave under FMLA is entitled to twelve (12) weeks leave in a given year for the employee’s own serious health condition. An employee taking leave under the PFMLA for her own serious health condition is entitled to twenty (20) weeks of such leave annually, however.
Leave taken under the PFMLA is also paid, as distinguished from the unpaid leave provided by the FMLA. The Commonwealth of Massachusetts pays benefits through a State trust fund. Employees earning up to $669.00 per week receive 80% of their weekly pay during PFMLA leave. Employees earning more than $669.00 per week receive an additional amount equal to 50% of earnings greater than $669.00 per week. The maximum weekly benefit currently available under the PFMLA is $850.00 per week.
Employers may face severe consequences if they retaliate against employees for exercising their PFMLA rights. An employee who proves a retaliatory termination is entitled to recover triple damages for lost wages, reinstatement and reasonable attorney’s fees. Perhaps most strikingly, the PFMLA flips the burden of proof that usually governs employment discrimination cases. Under most employment discrimination laws, the employee bears the burden to prove discrimination. Under the PFMLA, any adverse action taken by an employer against an employee who exercises a right to PFMLA leave is presumptively retaliatory, if the employer takes the adverse action within six (6) months of the employee taking leave. An employer seeking to rebut the presumption can only do so with “clear and convincing evidence.”
If you have questions about your rights under employment laws, you should consult an experienced employee rights attorney such as Benjamin King of Douglas, Leonard & Garvey, P.C. Attorney King has been ranked in the top 5% of lawyers in New England representing employees in employment discrimination cases, continuously since 2014. Attorney King can be reached at 1-800-240-1988 or fill out our online contact form.