For years, the Massachusetts Maternity Leave Act (“MMLA”), M.G.L. c. 149, §105D, only applied to female employees by its literal terms. The Massachusetts Commission Against Discrimination (“MCAD”), the agency tasked with enforcing the MMLA, has taken the position that if the MMLA was applied literally, it would be unconstitutional, as it would give female employees greater employment rights than men. Although initially intended to protect women who were giving birth to children, since the MMLA also protects women who adopt children, it is not about the physical “disability” associated with giving birth to a child. Thus, the argument goes, men should also be covered by its protections. The conflict between the literal terms of the MMLA and the MCAD’s guidelines for interpreting the MMLA created difficulty for employers who were not subject to the Family and Medical Leave Act (which entitles eligible employees, regardless of gender, to up to 12 weeks of unpaid leave for the birth or adoption of a child).
On his last day in office, Governor Deval Patrick settled the matter once and for all, by signing into law a bill that expressly expands the protections of the MMLA to all employees, regardless of gender.
Effective April 7, 2015, under the Parental Leave Law (“PLL”), all full-time employees, regardless of gender, are eligible for up to eight (8) weeks of unpaid leave for the birth or adoption of a child. The MMLA was further amended to provide that two employees who work for the same employer would be entitled to an aggregate unpaid leave of eight (8) weeks for the same child. For example, one parent working for the same employer as the other parent may take all eight (8) weeks while the other parent would take none; or each may take four (4) weeks; or one may take two (2) weeks and the other may take six (6) weeks.
The eligibility requirements for PLL have not changed. They are:
- An employee who has completed the initial probationary period set by the terms of employment, not to exceed 3 months, or, if there is no such probationary period, has been employed by the same employer for at least three (3) consecutive months as a full-time employee.
- The leave must be for the purpose of giving birth to a child, for the placement of a child under the age of 18 (or under the age of 23 if the child is mentally or physically disabled) for adoption with the employee, or for the placement of a child with an employee pursuant to a court order.
- The employee is required to give at least two (2) weeks advance notice to the employer of his or her anticipated date of departure on leave and intention to return from leave, or provide notice as soon as practicable if the delay is for reasons beyond the individual’s control.
Employees eligible for PLL are to 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, unless other employees with the same or similar position, equal status or length of service have been laid off due to economic conditions or other changes in the employer’s operating conditions, although an employee on parental leave are entitled to any preferential consideration for another position if the employee has such entitlement when s/he commenced parental leave. Additionally, while employees do not accrue additional vacation or additional benefits, an employee on parental leave is entitled to use any benefits accrued prior to commencement of the leave.
The PLL also creates a new obligation for employers who voluntarily provide parental leave for a period of time greater than eight (8) weeks. Specifically, an employer cannot deny the rights under the PLL for a leave that is greater than eight (8) week, unless the employer:
[C]learly informs the employee in writing prior to the commencement of the parental leave, and prior to any subsequent extension of that leave, that taking longer than 8 weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.
As a result, if an employer voluntarily grants a parental leave for a period of time greater than eight (8) weeks, unless it has given prior notice to the employee that taking greater than (8) weeks could jeopardize the employee’s position, the employer may be required to return the employee to work as if the leave had been eight (8) or fewer weeks.
With this upcoming change in parental leave and recent change in domestic violence leave law and upcoming paid sick leave law, employers should certainly review their handbooks and update their postings to ensure that they are compliant with these new laws. Additionally, in-house counsel and employers should be sure to consider the protections that these laws provide, and the concomitant obligations they impose on employers when making decisions about lay-offs, raises, promotions, and discipline, as subtle biases against employees who have availed themselves of protected leaves are much more prevalent than direct denial of or interference with the taking of such leaves.