Paid Family and Medical Leave and Protection From Retaliation

Labor & Employment Workforce Watch
July 2021

When new laws afford employees additional benefits in the workplace, such as the recent expansion of paid medical and/or family leave in many cities and states, employers must ensure that these new benefits are not only provided, but that those requesting or using such benefits are protected from retaliation from engaging in what is likely to be treated as a protected activity.

Currently, nine states and Washington D.C., as well as numerous cities, offer some form of paid medical and/or family leave.  At least two other states—Indiana and South Carolina—have similar legislation actively under consideration.  As a result, more and more employees will avail themselves of these new benefits.

According to an EEOC press release issued in February 2021, retaliation for engaging in a protected activity is the “most frequently cited claim in charges filed with the agency—accounting for a staggering 55.8 percent of all charges filed.”  State law agencies typically report similar findings.

Most of the current paid leave laws in place,[1] including those in Colorado, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington and the District of Columbia expressly contain some form of anti-retaliation provision to protect those employees engaging in this new class of protected activity.  The Massachusetts law even goes so far as to contain a presumption of retaliation in that any “negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment,” which occurs any time during the period of leave or within the six months following an employee’s return to work, is presumed retaliation.  Employers can overcome this presumption by clear and convincing evidence, which is a high bar for employers to clear.

By contrast, the paid leave laws in California and Connecticut do not contain express anti-retaliation provisions, although plaintiffs’ lawyers may argue that the anti-retaliation provisions in the unpaid family leave laws in those states apply to these new paid leave statutes.  For example, although not expressly prohibiting retaliation for taking paid leave, Connecticut requires employers to post a notice that retaliation is prohibited “for requesting, applying for or using family and medical leave for which the employee is eligible.”

Even for decisions seemingly unrelated to the paid leave, employer decisions affecting workers who have requested or taken paid leave provided and protected by these new laws may result in retaliation claims, and such decisions are likely to be more closely scrutinized by government agencies and courts. Employers should take care to understand the additional protections surrounding these leave requests and to minimize the increased risks by training those administering leave programs and related employment decisions on the appropriate methods for handling.

[1] Although Colorado, Connecticut, and Oregon have paid leave laws in place, the paid benefits will not be available for several years.  In Colorado, employers will not begin paying into the program until 2023, and benefits will not be available until 2024. In Connecticut, employer contributions began this year, but benefits will not be paid out until 2022.  And in Oregon, contributions by employers will begin in 2022, with program benefits to be paid out starting in 2023.