As of this writing (March 5, 2026) Minnesota’s Paid Family Medical Leave (“PFML”) program (Minnesota Statutes Chapter 268B) has been in operation for two months. Here are some of the challenges our clients are seeing and how to overcome them or at least minimize them.
1. Private Plan Employees Applying to the State Program.
Yes, this is happening. A lot. Even employers who have complied with the notice requirement of Section 268B.10, Subdivision 13, are enrolling in private plans and telling their employees that they are enrolled in private plans, only to have those employees apply for benefits with the State program. In most cases, this leads to employees getting a denial notice from the State . . . and then getting very mad. In one case, the State approved—and PAID! —benefits for an employee enrolled in a private plan. According to this employer, when it notified the State that the employee was ineligible under the State plan, the State allowed the employee to keep the benefits paid! (Although, the State could be seeking reimbursement from the private plan.) These situations turn benefits into headaches for employees and employers.
The lesson here is simple: People don’t listen. It’s not enough to comply with the minimum posting requirements. You need to tell them, and show them, and tell them again, exactly how to apply for benefits. In fact, it would be best if you had one designated go-to person in your organization who can hold the applicants’ hands as they apply.
2. High Use Rate Hurting Productivity.
One client, with 65 employees, currently has 7 employees on PFML. It’s making do with 89% of its workforce. It gauges customer satisfaction weekly and has seen this drop from 89% to 76% in 2026. It has decided that the only solution is to add 3 staff to account for what appears to be a future with a sizable part of its workforce simply gone. Fortunately, it has the revenue to do that without risking the company and putting all 65 out of work.
A remedial measure I’ve been advising since the inception of PFML is robust cross training. Employers simply can’t afford to be one-deep at any position. You need a plan as to how you will operate without a key employee for weeks on end. There should not be any password, program, or client in your company that only one employee knows.
3. “Top-Off”
Employers who wish to “top-off” an employee’s benefits to their wage level, as allowed by Section 268.01, Subdivision 41, are having a difficult time getting confirmation of an employee’s benefit amount. The State has not been consistent. For employees approved in January, the State was providing a concise breakdown of the benefit amount, while some employers approving leave in February received no such breakdown. I have yet to see any employer punished for making supplemental benefit payments that (when combined with PFM benefits) exceed the regular wage or salary, as is prohibited by Section 268.01, Subdivision 41(d). If the State has failed to identify the benefit amount, I can’t see the State turning around and suing the employer. Employers in this situation should simply ask the employee what they are receiving and supplement accordingly.
4. Approvals Not Matching Medical Documentation.
More than one employer has reported that, for example, a doctor will remove an employee from work for 6-8 weeks, and the State will approve the employee for a full 12 weeks of PFML. This appears to be a misreading of the benefits documents. Remember that there is a difference between eligibility for benefits and eligibility for leave. It appears that the State is actually telling employers and employees that 12 weeks of benefits are available. If the employee is not medically unable to work, they are not eligible for leave. Employers in this situation should contact the State and provide (or re-provide) the medical documentation showing the employee’s actual work limitations and release to work date. Meanwhile, they should insist that the employee return to work or provide supplementary documentation.
5. Employees Choosing to Not Use PFML.
One of the most frustrating things I’ve had reported is that many employees are simply electing not to use PFML. This is mostly occurring with employers who continue to offer generous leave packages in addition to the State-mandated leave programs. Employers are hearing things like “the State program just seems like a lot of form and a lot of pain to get less than all of my pay.” This is frustrating because money that would otherwise go to wages or profits is being paid to PFML, and the benefit isn’t even being used.
Even if you or your employees don’t like the new law, I encourage you to find ways to get your employees to use this benefit that you (and probably they) are paying for. Additional training to de-mystify the system may make use more likely.
Another option that employers are considering is pairing down PTO and other optional leave programs to get employees to use the PFML system that you have no choice but to pay for.
Remember, use of PFML is the employee’s option. They may be shooting themselves in the foot by using PTO instead, but that is their choice.
6. Federal FMLA and Minnesota PFML Double Dipping
Remember, Minnesota employers with employees above the Federal FMLA threshold are subject to both Federal FMLA and Minnesota PFML. Much initial guidance from the State and from attorneys interpreting the Minnesota PFML indicated that Minnesota PFML and FMLA “leave run concurrently.” Unfortunately, that’s an oversimplification.
Remember that any leave taken for the purposes of Federal FMLA can be designated as FMLA by the employer. Once the leave is taken, notice from the employer starts the FMLA 12-week calendar counting. However, remember that it’s the employee’s option whether or not to take Minnesota PFML. Particularly when the reason for leave is baby leave, the employee has considerable room to structure leave creatively (compared to leave for a medical disability with an uncertain date of onset and date of recovery). Employee can take, and have been taking, 12 weeks of FMLA baby leave, and then applying for—and receiving—12 weeks of Minnesota PFML. This may or may not have been what the Minnesota Legislature intended, but it is allowed under the plain language of the statute.
7. Employers Being “Increasingly Selective” About Hiring.
Many clients and employers have told me some version of the same thing in the context of PFML: “Going forward, we’re just going to be increasingly selective about who we hire, keep, and promote.” You are free to think thoughts like that; but never ever speak them to anyone but your attorney!
You are absolutely prohibited from taking adverse employment action based on use of PFML, your assumptions about future use of PFML, an employee’s medical condition, or your guesses about an employee’s medical condition.
8. The 90 Day Question.
Section 268B.09 Subdivision 6(a) governs reinstatement and broadly says that “(a) On return from leave . . . employee is entitled to return to the same position . . . .” Section 268B.09, Subdivision 6(a) says nothing about when this right of reinstatement arises. Section 268B.09, Subdivision 6(h) says “Ninety calendar days from the date of hire, an employee has a right and is entitled to reinstatement as provided under this subdivision for any day for which:” (1) employee has been deemed eligible; or (2) employee is eligible or applied in good faith.
So, the question is, if an employee who has worked for less than 90 days is given PFML that takes her beyond the 90-day window, is that employee entitled to reinstatement? Stated otherwise: Does the right to reinstatement arise on the 90th day of employment without leave, or simply the 90th day?
The specific question of one client was: “we have an employee who worked for us for 15 days and was then taken off of work for 12 weeks, which is 84 days, so he’ll return on day 99. Does he have a right to reinstatement, or can we fire him?” According to the plain language of the statute, the employer certainly can’t fire him on day 90, but can it fire him on day 89 or earlier?
The question is: what would be the reason for this termination? Section 268B.09, Subdivision 1(a) says an employer can’t fire “for requesting or obtaining benefits or leave[.]” So the employer certainly can’t fire him because he took PFML. What legal reasons would the employer have for firing him? When he has exhausted ESST and any other leave, termination is generally allowed with continued absence (subject to ADA/MNHRA analysis). But he hasn’t exhausted all leave—he has PFML.
The statute does not clearly answer this question. A Fact Sheet put out by DEED says, “If someone has worked at their job for at least 90 days, their job will be protected when they return from leave.” But a fact sheet is not law.
Ultimately, while it’s an extremely close call, I think an employer could terminate before the 90 days. If I had to defend an employer in that situation, I would argue that while Section 268B.09, Subdivision 6(h) is terribly worded, it must mean something, and it can only mean that an employee who has not worked 90 days has no right to return and thus may be fired.
9. Will Minnesota Paid Family Leave Act be Declared Unconstitutional?
And finally, there is reason to believe that all of this will go away. It’s fairly complicated so here’s the short version: Article IV, Section 17 of the Minnesota State Constitution requires that “No law shall embrace more than one subject, which shall be expressed in its title.” Minnesota PFML was passed in House File 5247, also known as 2024 Session Law Chapter 127. The portion of Chapter 127 that states its “one subject” is 312 words long and refers to highway bonds, unions, veterinary licenses, machine guns, taxes, and the Minnesota PFML.
A separate portion of Chapter 127 has already been struck down as being passed in violation of the “Single Subject Clause” of the State Constitution. That was a trial court decision so it will be a while before the Minnesota Supreme Court rules on it, but the Minnesota Supreme Court has struck down legislation for this reason before. It may only be a matter of time before PFML meets the same fate.
10. Conclusion.
The Minnesota PFML was a sprawling mess of legislation. Meanwhile, State employees are tasked with running a system that is new to the State, to employers, and to employees. These growing pains were guaranteed. Employers should remain engaged and not leave employees to navigate this system alone. be checking securechoice.mn.gov regularly to see exactly what the unelected board is going to require of your payroll department and when.
