Massachusetts employers should prepare now for revisions to the Massachusetts Maternity Leave Act (“MMLA”) that, effective April 7, 2015, will provide job-protected unpaid leave to both male and female employees for the purpose of birth, adoption, or placement of a child pursuant to a court order. The bill, which was signed into law January 7, 2015, the day before Governor Deval Patrick left office, converts the MMLA into a parental leave law (“Parental Leave Law”), i.e., applicable to both men and women, and expands the scope of parental leave protections as follows.
Extension To Male Employees
The Parental Leave Law extends to both male and female employees, entitling all working parents to eight weeks of unpaid job-protected leave. The Massachusetts Commission Against Discrimination (“MCAD”), which administers the law, likely will take the position, as it did under the MMLA, that it is discriminatory to offer more leave time or related benefits to female employees without offering the same arrangement to male employees. In this regard, courts outside Massachusetts have concluded that granting leave to female but not male employees may constitute gender discrimination under Title VII if the leave is for childcare as opposed to recovery from birth. Thus, in revising their policies, employers should consult with employment counsel about any differences in leave entitlements for male and female employees.
Parents Working For Same Employer
The Parental Leave Law clarifies that if two employees of the same employer seek leave for the birth or adoption of the same child, then they will be entitled to an aggregate of eight weeks of leave. The law does not limit this provision to employees who are spouses.
Job Restoration Rights
The Parental Leave Law provides greater job restoration protection. Under the new law, an employer that allows more than eight weeks of parental leave is presumed to extend job protection for the entire leave period, unless the employer provides written notice before the start of the leave and before any subsequent extension that job protection will cease after eight weeks. In contrast, under the MMLA and related case law, an employer had to restore an employee to her previous or a similar position only if the leave was completed within eight weeks.
Leave For Court-Ordered Placement Of Child
The new law also expands the reasons for taking leave. In addition to providing leave for birth or adoption, the Parental Leave Law provides leave for the placement of a child with an employee pursuant to a court order.
Three-Month Probationary Period
The Parental Leave Law makes parental leave available after three months of employment, even if the employer has a longer initial probationary period. In contrast, the MMLA currently covers only those employees who have worked for the duration of the employer’s initial probationary period, or, if there is no such period, at least three months.
Under the new law, an employee may provide less than two weeks’ notice of his or her intent to take leave or return from leave, if the delay is for reasons beyond the individual’s control. The MMLA currently requires two weeks’ notice without exception.
The new law does not change other aspects of parental leave. As with the MMLA, employers are required to post a notice describing the parental leave and the employer’s policies related to the leave. The leave may be paid or unpaid, at the employer’s discretion. Finally, a violation of the Parental Leave Law continues to be a violation of the Massachusetts anti-discrimination law, known as “Chapter 151B.”
Interaction With FMLA
The interaction between the Parental Leave Law and the federal Family and Medical Leave Act (“FMLA”) may pose challenges for employers. The FMLA provides 12 weeks of job-protected leave to male and female employees for the purpose of birth or adoption, and requires the leave to be shared by spouses working for the same employer. However, the FMLA applies only if an employee has worked for the employer for at least 12 months and at least 1,250 hours in the year preceding a requested leave, and the employer employs at least 50 employees within a 75-mile radius of where the employee works. The FMLA does not provide leave for placement of a child pursuant to a court order. In light of these differences, some male employees who are not covered by the FMLA will be covered by the new Parental Leave Law. Accordingly, employers covered by the FMLA should consult employment counsel when revising their policies to ensure compliance with the new law.
Recommendations For Employers
To prepare for the Parental Leave Law, we recommend that employers do the following:
Please feel free to contact us if you have any questions about the new Parental Leave Law or if you may need assistance with compliance or related litigation matters.