In one of his last acts as Massachusetts Governor, Deval Patrick signed into law an amendment to the Massachusetts Maternity Leave Act (“MMLA”), extending coverage of the Act to male employees. The new parental leave law, signed January 7, 2015, will be effective on April 7, 2015 (90 days after its enactment).
Prior to the amendment, the MMLA provided eight weeks of job-protected leave to female employees for the birth or adoption of a child. With this amendment, leave under the MMLA is extended to males as well as females. Further, the MMLA now also covers leave for the placement of a child with an employee pursuant to a court order.
The amendment makes other critical modifications to the MMLA. First, the law makes employees eligible for parental leave if they have completed the initial probationary period set by the terms of employment, not to exceed three months, or, if there is no such probationary period, have been employed by the same employer for at least three consecutive months as a full-time employee.
Second, under the amended MMLA, eligible employees shall be entitled to eight weeks of parental leave for the purpose of giving birth or 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 who is adopting or intending to adopt the child. Although the new law is not explicit on this point, it is clear that parental leave now extends to the non-birth parent for the purpose of bonding with the child after birth. That said, as amended, the MMLA limits the amount of leave that parents working in the same company can obtain, stating that any two employees of the same employer are entitled only to eight weeks of parental leave for the birth or adoption of the same child.
Third, the amended law continues to require employees to provide at least two weeks’ notice to the employer of the employee’s anticipated date of departure and the employee’s intention to return, but it now allows an employee to provide notice “as soon as practicable” if the delay in providing notice is for a reason beyond the employee’s control.
Finally, the amended law does not change the protected nature of the parental leave. Employers must restore the employee to his or her previous, or a similar, position with the same skills, pay, length of service credit and seniority as of the date of the leave. In addition, 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 as of the date of the leave or any other advantages or rights of employment.
However, the amended law provides additional protection to employees who take leave in excess of eight weeks. Under the law, if an employer agrees to provide parental leave for longer than eight weeks, the employer may not deny the employee job restoration unless it clearly informs the employee, in writing, prior to the commencement of the parental leave and prior to any subsequent extension of that leave, that taking more than eight weeks of leave may result in the denial of reinstatement or the loss of other rights or benefits under the statute. Employers granting additional parental leave, therefore, must ensure that there is a written communication with the employee about what will not be guaranteed after the eight weeks of leave.
With the enactment of the parental leave law amendment to the MMLA and the Massachusetts Earned Sick Time Law (see our article, Massachusetts Voters Pass Mandatory Sick Time Law for All Employers, Effective July 1, 2015), employers should review and amend leave and time off policies to ensure compliance.