Page 38 - BusinessWest June 23, 2021
P. 38

Avoiding the Pitfalls
Employers Need to Know the Facts on Paid Family and Medical Leave
By Joseph Bednar
Tim Netkovick calls it the “kicker” in the law — and it’s a kick that could bruise an unsuspecting employer.
The law in question is the state’s new Paid Family and Medical Leave (PFML) law, portions of which went into effect on Jan. 1, with others to follow on July 1. The law essentially makes Mas- sachusetts the most generous state in the coun- try when it comes to allowing workers to take leave for medical and family-care reasons.
And employers need to be careful how they
sumed to be in retaliation,” he told BusinessWest. Indeed, if an employee challenges an employ-
er’s actions following leave taken under the PFML law, the burden is on the company to prove there was some justifiable reason for tak- ing the adverse action that had nothing to do with the leave request.
“The law does have a very strong anti-retal- iation provision baked in. Often, these types of laws do have an anti-retaliation provision, but this one is a little unique,” said John Gannon, an
Tim Netkovick says employers have to be careful when taking adverse actions with an employee following a PFML claim.
 “The private plan has to be set up
to match the state plan. There’s no requirement it has to be better, but it has to at least match with the state plan.”
attorney with Skoler, Abbott & Presser in Springfield.
“If an employer does take some kind of negative action against the employee — termination, suspension, demotion, even a negative performance review
— within six months of the last day they took leave, there is a presumption that the employer retaliated,” he explained. “The employer can rebut that presump- tion, showing the motive for the deci-
with.
“That’s a challenge we’ve seen come up a few
times, where there were issues with the employ- ment relationship before that, and then, all of a sudden, someone goes out on PFML leave,” he said. “There’s not really a lot of guidance on that yet. It might be assumed to be in retaliation, but if you can show something concrete that has
     respond to claims, said Netkovick, an attorney with the Royal Law Firm in Springfield.
“If somebody has utilized PFML, there is what I call a kicker in that statute that says, if there’s any adverse action taken against the employee within a certain period of time, then it’s pre-
sion is not linked in any way to paid family or medical leave use, but it does open the door to more potential litigation in this area.”
It’s a challenge to prove the action was justifi- able, though not impossible, Netkovick said. Still, it’s not a headache employers really want to deal
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