Five Common PFML Pitfalls—And How to Avoid Them

The Massachusetts Paid Family and Medical Leave law (“PFML”) has been a source of both confusion and compliance headaches for employers. While the law provides critical protections for employees who need time away from work for qualifying medical and family reasons, employers frequently stumble when trying to comply with the law. Below, we examine the five most common mistakes employers make when administering PFML — and how to avoid them.

1. Inadequate Notice and Communication

One of the most fundamental errors employers make is failing to recognize that the burden of notifying employees of their right to take leave falls squarely on the employer. Many employers adopt a passive approach, waiting for employees to come to them with a fully formed leave request. This is a mistake.

When an employee mentions a medical condition or limitation that affects their ability to work, alarm bells should sound.  No magic words are required.  Employees do not need to reference PFML, FMLA, or even taking time away from work. Once an employee mentions a serious health condition, family member’s illness, or a need for treatment, the employer’s obligation to advise the employee of their PFML rights is triggered.

Specifically, once an employer receives a request for leave or becomes aware of a potential need for leave, the employer must advise the employee of their eligibility and the required procedures within five business days of the request. Employers who drag their feet on this obligation, or who fail to recognize a leave request when it arises informally, expose themselves to unnecessary liability.

2. Mismanaging Continuous vs. Reduced Schedule (Intermittent) Leave

A second common pitfall involves mishandling continuous vs. reduced schedule or intermittent leave. The key principle here is straightforward: the employee gets to choose whether they will take continuous or reduced-schedule leave, consistent with their medical needs and provided the employee and employer can reasonably agree on a schedule. Note, however, that employees will generally need to file a new PFML request with the state Department of Family and Medical Leave (“DFML”) before materially changing their reduced leave schedule or switching between reduced schedule and continuous leave.

The employer cannot mandate continuous leave simply because intermittent or reduced schedule leave is inconvenient or creates a financial hardship, nor can an employer force intermittent leave when an employee needs continuous time away. That said, the employee’s choice is not entirely unchecked. The employee must coordinate with the employer to arrive at a schedule that allows the employee to obtain necessary treatment or provide care for a family member while also being mindful of legitimate business needs. Employers can ask employees to schedule time away from work around certain business priorities or operational demands, so long as doing so does not interfere with the employee’s ability to receive treatment. 

Finally, employers should be aware that they bear the responsibility for reporting any changes to an employee’s wages to the DFML. This includes changes in pay rates, additional or reduced hours worked, and holiday pay. Failure to keep the DFML apprised of these changes can result in incorrect benefit calculations and compliance issues down the road.

3. “Topping Off” PFML Benefits with PTO/Mandatory Exhaustion of Accrued Leave

The intersection of PFML benefits and an employer’s paid time off (“PTO”) policies is one of the trickiest areas of PFML administration, and it is fertile ground for mistakes. First and foremost, employers cannot require that employees exhaust their accrued PTO while receiving PFML benefits. The choice to supplement or “top off” PFML benefits with accrued PTO belongs to the employee, not the employer. At the same time, the employer must permit an employee to use PTO to supplement their benefits if the employee chooses to do so, provided the employee follows the employer’s existing PTO policies and procedures. There is, however, a ceiling: the total compensation an employee receives, combining PFML benefits and any PTO top-off, cannot exceed the employee’s Individual Average Weekly Wage as determined by the DFML. Double dipping is not allowed.

Employers are required to maintain employment-related health insurance benefits at the same level and under the same conditions as if the employee had continued working during the leave period. However, employers are not obligated to provide for the accrual of vacation, sick leave, paid holidays, or other benefits during the leave period.  Make sure your PFML policy explicitly addresses these issues and is applied consistently across your workforce.

4. Overlooking PFML Coverage for Remote and Hybrid Employees

The rise of remote and hybrid work has added a new layer of complexity to PFML administration. Are fully remote employees who work for a Massachusetts-based business covered under the PFML? The answer, in most cases, is yes, and this is a significant departure from the framework many employers are accustomed to under the federal Family and Medical Leave Act (“FMLA”).

Under the PFML, an employee is covered if their work is “localized” to Massachusetts. This means that the employee’s service is either performed entirely within the Commonwealth or, if the service is performed both within and outside of Massachusetts, the work performed outside of Massachusetts is incidental to the individual’s service within the state. In evaluating whether an employee’s work is localized to Massachusetts, employers should consider several factors, including whether the employee spends any time working in Massachusetts, whether the employer has a base of operations in Massachusetts, and whether the employee reports to a Massachusetts location. These factors can sweep in employees that employers might not intuitively consider to be Massachusetts-based. Employers with remote or hybrid workforces should carefully evaluate their employee populations and ensure they are not inadvertently excluding employees from PFML coverage.

5. Retaliation and Perceived Retaliation

Perhaps the most consequential mistake employers make involves adverse employment actions taken during or shortly after an employee’s PFML leave. The scenario is a familiar one: an employee goes out on leave, the employer brings in temporary help or shifts responsibilities to provide coverage, and in the process discovers that the employee on leave made significant mistakes, dropped the ball on an important project, or had been generally underperforming. The employer wants to terminate employment.

This instinct must be tempered with extreme caution. If the employee is still out on leave, taking adverse action carries a substantial risk of interference and retaliation claims. If the employee has returned from leave, the risk of a retaliation claim persists, even if the employee has been back for several months. Massachusetts law contains a presumption that adverse action taken within six months of an employee’s return from leave is retaliatory. Six months is a long time to have your hands tied, but employers who ignore this presumption do so at their peril.

There are, however, steps employers can take to protect themselves from these pitfalls. First, document any performance issues or misconduct as soon as they are discovered. Be precise about the date when the issue occurred and the date it was discovered. Second, document the date the decision was made to take adverse action. This can be particularly important if an employer decides to proceed with termination but the employee submits a leave request before the decision can be carried out. Third, and critically, ensure that you are treating like situations the same way. If another employee made similar errors and was not terminated, the employer will significantly weaken its defense to a retaliation claim. Conversely, if the employer can demonstrate that it has terminated other employees in the past for similar conduct or performance issues, the defense will be much stronger.

A related scenario involves reductions in force that take place while an employee is out on leave or shortly after the employee returns. Employees who take PFML leave are entitled to be restored to their previous position or an equivalent position with the same status, pay, and benefits upon their return. Employers often fail to comply with this restoration requirement, particularly in cases where layoffs or restructuring occur during the leave period. The PFML does recognize that employers are not required to restore employees if their position was eliminated due to economic conditions or operational changes, but only if that decision was genuinely unrelated to the employee’s leave.

For employers facing this situation, preparation and documentation are essential. Create a written plan for the reduction in force and document the rationale for the decisions made and projected financial impact.  These steps will help demonstrate that the decision was made for legitimate business reasons and was not influenced by the employee’s exercise of their leave rights.

Conclusion

The Massachusetts PFML is a complex statute with real teeth. Employers who treat it as an afterthought or who rely on assumptions carried over from the federal FMLA are setting themselves up for costly mistakes. By developing clear policies, training managers to recognize leave triggers, and documenting decisions carefully, employers can navigate the PFML’s requirements with confidence and significantly reduce their exposure to liability.