29. Reinstatement

The worker must be reinstated to the “previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave.” G.L. c. 175M, § 2(e). Employers must reinstate all other employment benefits upon return, including but not limited to: group life insurance, health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits, and pensions. 458 C.M.R. 2.02 (“Employment benefits”).

The SJC has clarified that the law does not require that workers continue to accrue vacation or seniority during leave. In effect, a worker’s seniority relative to other workers may decline in proportion to the amount of leave taken. See Bodge v. Commonwealth, 494 Mass. 623 (2024). Said another way, the PFML leave period “need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate.” 458 C.M.R. 2.16(1).

Some people believe they cannot be terminated while on PFML leave, or upon returning from leave, but that is not true. An employer can lay off a worker on PFML leave if they have also laid off similarly situated workers. G.L. c. 175M, § 2(e). An employer can terminate a worker on PFML leave if they would have terminated the worker regardless of the use of PFML leave. G.L. c. 175M, § 9(b). However, in court, the burden is on the employer to prove by “clear and convincing evidence” that “the employer had sufficient independent justification for taking such action and would have in fact taken such action in the same manner and at the same time the action was taken, regardless of the employee's use of leave.” Id. This special burden on the employer and presumption of retaliation starts on the day the worker requests leave and runs until six months after the end of the PFML leave. Id.