The Family and Medical Leave Act and Massachusetts Employers: A Practical Guide
By a Massachusetts Business Attorney · Employment Law
An employee just told me they need leave and I’m not sure what I’m required to do. That’s one of the most common questions I get from business owners. The federal Family and Medical Leave Act (FMLA) and Massachusetts’ Paid Family and Medical Leave (PFML) program create overlapping requirements that confuse many employers. Here’s how to navigate them.
Federal FMLA Basics
The federal FMLA applies to employers with 50 or more employees. If your company meets this threshold, the FMLA applies to you. Here’s what you need to know:
Who is covered. The FMLA covers eligible employees. To be eligible, an employee must have:
- Worked for you for at least 12 months
- Worked at least 1,250 hours in the past 12 months (roughly 24 hours per week)
- Worked at a location where you employ at least 50 employees within 75 miles
Not every employee is automatically covered. Seasonal workers, new hires, and part-time employees may not qualify.
What leave is covered. The FMLA provides up to 12 weeks of unpaid leave in a 12-month period for:
- The birth of a child or adoption
- Bonding with a newborn or newly adopted child
- Care for a spouse, child, or parent with a serious health condition
- The employee’s own serious health condition
- Qualifying exigencies related to military service
- Military caregiver leave (up to 26 weeks)
“Serious health condition” is defined broadly. It includes any condition requiring continuing medical treatment and causing the employee to be unable to perform their job.
Job protection. When an employee takes FMLA leave, their job (or an equivalent job) must be available when they return. You cannot fire, demote, or discipline them for taking protected leave.
Health insurance. While on FMLA leave, the employee’s health insurance continues under the same terms as if they were working. You pay your share; the employee pays their share. If the employee stops paying their share, they’re not protected from termination for that reason (but you have to give notice and an opportunity to pay).
Notice requirements. Employees must provide notice of foreseeable leave (like childbirth) at least 30 days in advance. For unforeseeable leave, they must provide notice as soon as practicable. You should have a form for employees to request FMLA leave and a form to certify the leave.
The U.S. Department of Labor provides forms and guidance at dol.gov/agencies/whd/fmla.
Massachusetts Paid Family and Medical Leave (PFML)
Massachusetts has its own paid leave law, which actually predates the current federal FMLA. The Massachusetts PFML is more generous than the federal law in some respects.
Who is covered. PFML covers employees who have worked for an employer for at least 90 days. This applies to all Massachusetts employers, regardless of size. Even companies with just a few employees must comply.
What leave is covered. Employees get up to 12 weeks of paid leave in a 52-week period for:
- Caring for a family member with a serious health condition
- A serious health condition of their own
- Bonding with a newborn or newly adopted child
- Qualifying military family leave
- Victim services leave (for domestic violence, sexual assault, or stalking)
The key difference from federal FMLA: in Massachusetts, this leave is paid. The program is funded through payroll deductions (employees and employers both contribute). It’s similar to unemployment insurance in structure.
Payment. The program pays a percentage of the employee’s salary (typically 55-80% depending on income level), up to a maximum benefit amount. The maximum benefit changes annually. You don’t directly pay the benefits; the program does.
Notice requirements. Employees must provide reasonable notice (typically at least 30 days for foreseeable leave). The Massachusetts Department of Family and Medical Leave provides forms and guidance on their website.
Job protection. Like the federal FMLA, employees must be restored to their job or an equivalent job after taking PFML leave.
How Federal FMLA and Massachusetts PFML Work Together
This is where it gets confusing. If your company is covered by both (50+ employees in Massachusetts), here’s how they interact:
Concurrent leave. FMLA leave and PFML leave run concurrently. The same 12-week period counts toward both the federal 12-week entitlement and the state 12-week entitlement. So an employee doesn’t get 24 weeks of leave total; they get 12 weeks, but those weeks are covered under both programs.
Notice to both. When an employee notifies you of the need for leave, you should inform them of their rights under both federal FMLA and Massachusetts PFML. Provide both the federal notice and the state notice.
Designation. Designate the leave as “FMLA-qualifying and PFML-qualifying” so it’s clear to everyone.
Tracking. Keep clear records of leave taken. Track it against both the federal 12-week limit and the state limit. Since they’re concurrent, this should be straightforward, but it’s easy to get confused.
Reinstatement. The same job protection applies. After taking 12 weeks of concurrent leave, the employee is entitled to be restored to their position.
For companies that don’t meet the federal threshold (fewer than 50 employees), only Massachusetts PFML applies. The notice requirements and leave entitlements are the same, but there’s no federal FMLA protection.
Notice and Certification Requirements
Employers have obligations to notify employees and to request certification.
Your notice obligation. When an employee notifies you of the need for leave, you must provide them with written notice of their rights and responsibilities under both FMLA and PFML (if applicable). The Department of Labor and the Massachusetts DFML both have required forms. Use them.
Certification. You can require the employee to provide medical certification from their healthcare provider. This should be done on the official form. Medical certification can include:
- The date the serious health condition began
- The probable duration
- Appropriate medical facts related to the condition
- For care of a family member, a statement that the family member is unable to care for themselves and needs care
- For the employee’s own condition, a statement that the employee is unable to perform their job functions
You cannot ask for more information than what’s on the form. You cannot contact the healthcare provider directly to ask follow-up questions without the employee’s consent.
Recertification. Depending on the circumstances, you can request recertification. For continuous conditions, typically once per year. For intermittent leave, more frequently.
Failure to certify. If an employee doesn’t provide the required certification, you can delay granting leave until they do. But be reasonable. Give them at least 7 days to provide certification for foreseeable leave.
Common Mistakes Employers Make
Here’s what I see employers do wrong with FMLA and PFML:
Denying leave because the employee didn’t use the right form. If an employee tells you they need leave for a medical reason and have worked for you at least 90 days, that’s an eligible leave request. You can require them to use the proper form for certification, but you can’t deny leave because they didn’t say the magic words.
Terminating someone while on leave. Once someone notifies you of the need for FMLA or PFML leave, you generally cannot terminate them for 12 weeks. If you do, it looks like retaliation. Exceptions exist for serious misconduct unrelated to the leave, but this is a high bar.
Changing the employee’s job duties when they return. The job protection means the employee gets their job back or an equivalent job. You cannot demote them or reduce their hours as a punishment for taking leave.
Failing to pay benefits during leave. For PFML, the program pays (through payroll deductions). You don’t stop paying the employee’s portion of health insurance or retirement contributions during leave unless the employee is on unpaid FMLA leave.
Requiring a doctor’s note for all absences. You cannot require a medical certification for every sick day. Only for leave that qualifies as a serious health condition under FMLA or PFML.
Not tracking leave correctly. Keep clear records of leave taken, including dates and how much time remains. An employee who thinks they have 2 weeks of leave left and you think they’ve used 12 weeks creates problems.
Failing to notify the employee of their rights. When someone requests leave, you must provide the required notice explaining FMLA and PFML rights. Failure to do this can result in penalties.
Interfering with the right to take leave. Even if someone is on FMLA or PFML leave, you cannot call them and pressure them to work. Once leave is approved, it’s protected.
The Bottom Line
Here’s what every Massachusetts employer needs to know: if an employee tells you they need leave for a medical reason, they’ve worked for you at least 90 days, and the reason qualifies under the law, you must grant the leave. The employee is protected from termination or retaliation for taking it.
If you have 50+ employees, both federal FMLA and Massachusetts PFML apply. If you have fewer than 50, Massachusetts PFML applies. Either way, you have obligations to notify, to accept leave requests, to continue benefits, and to restore the employee to their job.
The process is straightforward if you follow the rules. Use the official forms. Track leave carefully. Don’t retaliate. Reinstate the employee.
For more on employment law, check out our guides on employment contracts and wrongful termination.
Call my office at 978-273-8337 or visit gaudetlawoffice.com if you need guidance on a leave request or want to review your FMLA and PFML policies.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
