Employment Law Alert

Massachusetts Maternity Leave Becomes Parental Leave on April 7, 2015

January 1, 2015

Just before leaving office, Governor Patrick signed into law a bill extending the existing Massachusetts Maternity Leave protections to all employees, not just female employees.  The Parental Leave Law, M.G.L. c. 149, §105D, closely tracks the old one, providing as follows:

  • Eligible employees are entitled to eight weeks of parental leave for the purpose of giving birth or for the placement of a child under 18 years of age, or under the age of 23 if the child is mentally or physically disabled, for adoption with the employee adopting or intending to adopt, or for the placement of a child with an employee pursuant to a court order.
  • To be eligible, an employee must work full-time for an employer of six or more employees, and have completed the employer’s probationary period; if there is no such probationary period, the employee must have been employed by the employer for at least 3 consecutive months.
  • The employee shall give at least two weeks’ notice to the employer of the anticipated date of departure and intention to return, or provide notice as soon as practicable if the delay is for reasons beyond the individual’s control.
  • The employee shall be restored to the employee’s previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of the leave.
  • The parental leave may be with or without pay, at the discretion of the employer.
  • The employer shall not be required to restore an employee on parental leave to the previous or a similar position if other employees of equal length of service credit and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions affecting employment during the parental leave; provided, however, that the employee on parental leave shall retain any preferential consideration for another position to which the employee may be entitled as of the date of the leave.
  • The parental leave shall not affect the employee’s right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which the employee was eligible at the date of the leave, and any other advantages or rights of employment incidental to the employment position; provided, however, that the parental leave shall not be included, when applicable, in the computation of the benefits, rights and advantages; and, provided further, that the employer need not provide for the cost of any benefits, plans, or programs during the parental leave unless the employer so provides for all employees who are on leave of absence.

The Parental Leave Law does add some new provisions not addressed in the old law:

  • If two employees work for the same employer, they shall only be entitled to 8 weeks of parental leave in aggregate for the birth or adoption of the same child.
  • If the employer agrees to provide parental leave for longer than 8 weeks, the employer shall not deny the employee the rights under the law (with regard to job security, for example) unless the employer clearly informs the employee in writing prior to the commencement of the leave, and prior to any subsequent extension of that leave, that taking longer than  8 weeks will result in the denial of reinstatement or loss of other rights and benefits.

The new law specifically provides that an employee on parental leave for the adoption of a child shall be entitled to the same benefits offered by the employer to an employee on parental leave for the birth of a child.

Interaction with other laws

Note that employers subject to the federal Family and Medical Leave Act (“FMLA”) should make sure to indicate in their policies that leave taken under the Massachusetts Parental Leave Law runs concurrent to leave taken under the FMLA.  There may be some instances where an employee is entitled to 12 weeks’ leave under the FMLA plus 8 weeks’ leave under the Parental Leave Law.  For example, if a pregnant employee takes FMLA in advance of giving birth due to a pregnancy related disability which constituted her own serious health condition, she would still be entitled to leave under the Parental Leave Law at the time she gave birth.

Enforcement

M.G.L. c. 149, §105D is enforced by the Massachusetts Commission Against Discrimination, and a violation of the law carries the same possible penalties as a violation of M.G.L. c. 151B.  The MCAD has also promulgated regulations concerning the law.  While the new version of the law does not provide for further regulations from the MCAD, presumably the existing regulations, where applicable, will still apply.

For more information about the Parental Leave Law, or for help revising your current maternity leave policy, please contact a member of the Employment Law Group.

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