In October 2024, Steffans Legal agreed to represent a therapist based in Hampden County in a case arising under the Massachusetts Paid Family and Medical Leave Act (“MA PFML”).  In this case, our client was terminated while she was on MA PFML leave and preparing to return to work with the employer claiming it no longer has any work for her.

Can My Massachusetts Employer Terminate Me While I Am on Massachusetts Paid Family Medical Leave or Do They Have to Return Me to My Position?

The Massachusetts Paid Family and Medical Leave Act and the related regulations make it incredibly difficult for an employer to terminate an employee while they are out on leave protected by the MA PFML. Those regulations state that an employee who has taken leave shall be restored to their previous or equivalent position at the end of their leave. 458 CMR 2.16(1). That’s “shall” not “may,” meaning it has to happen. The only exceptions to this requirement are where (1) other employees of equal seniority and status have been laid off at the same time, (2) changes in operating conditions occurred while the employee was on leave, or (3) the employee was hired for a specific term/project that has ended. 458 CMR 2.16(1). However, even in those circumstances, the employer must prove one of those exceptions exists by clear and convincing evidence (a very high standard). 458 CMR 2.16(4). Moreover, any adverse employment action that occurs within six months of leave is presumed to be unlawful. 458 CMR 2.16(4).

In this case, the employer’s “we-have-no-work-for-you” excuse will be hard to prove given the presumption outlined above and because it hired someone while our client was on leave and posted to hire someone with her same job description after it let her go. Hard to credibly maintain there’s no work available when you’re actively interviewing and hiring.

Does My Massachusetts Employer Have to Return Me to My Pre-Leave Position at the End of My Leave Under the Massachusetts Paid Family and Medical Leave Act?

Not exactly. The regulations state that your employer has to return you to your pre-leave position or to an equivalent position with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of the leave. 458 CMR 2.16(1). Having said that, if it’s different, it better just be by a bit, and the employer should have a good explanation for why it didn’t return you to the exact pre-leave position.

We are in the process of trying to resolve this dispute for our client and are prepared to proceed with litigation if that is unsuccessful.