THESE UPDATES ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL ADVICE OR RECOMMENDATION

On January 7, 2015, Governor Deval Patrick, signed into law “An Act Relative to Parental Leave” which replaces the Massachusetts Maternity Leave Act (the “MMLA”). Prior to the enactment of the law, the MMLA applied only to female employees. Under the new Parental Leave law, employers now must provide such leave to men on the same terms and conditions as leave is provided to women. The new statute amends the Commonwealth’s maternity leave law, M.G.L. c. 149, § 105D, and its anti discrimination law, M.G.L. c. 151B, § 4(11A), by making both statutes gender neutral. The law applies to Employers with Six or More Employees

Below are some common questions and answers:

Who is covered under the Parental Leave Act?

Any employee who:

- Works for employers with 6 or more employees; and,

- Has completed their employer’s initial probationary period (which is not to exceed three months), or, has been employed by the same employer for at least 3 consecutive months as a full-time employee (whichever is shorter).

What is the length of the leave?

Eight weeks. (However, employers also subject to the FMLA have additional obligations -- see below).

Must the leave be paid?

No. It is at the discretion of the employer to provide paid or unpaid leave.

Does the law just apply to the birth of a baby?

No. It applies to the following purposes:

- Purpose of giving birth;

- Placement of a child under the age of 18 (i.e. fostering a child);

- Placement of a child under the age of 23, if the child is mentally or physically disabled; and,

- Adoption – or intention to adopt – a child.

What happens after the employee returns to work?

Employees shall be restored to their previous, or a similar, position with the same status, pay, length of service credit and seniority as of the date of the leave.

Are there any limitations or employee requirements?

Yes:

- Any two employees of the same employer shall only be entitled to 8 weeks of parental leave in the aggregate;

- Employers are not required to restore an employee on leave if similarly situated employees (i.e. employees with similar length of service, credit and status, who are in the same or similar positions) have been laid off due to economic conditions or other changes in operating conditions;

- Employees must provide two-weeks’ notice before the date they intend to take leave; if two weeks’ notice is not possible for reasons beyond the employee’s control, the employee must provide notice as soon as practicable;

- Employees must indicate to the employer their intention to return to work;

- Employers need not provide the cost of any benefits, plans or programs during leave unless the employer provides for such benefits to all employees who are on a leave of absence. That is, if an employer continues its contribution to benefits for an employee on a medical or personal leave of absence, it must provide the same contribution to employees taking parental leave.

How does the Massachusetts Parental Leave Act affect the FMLA:

The amended law does not change any obligation for employers that also are subject to the Family and Medical Leave Act.

- The Family and Medical Leave Act ("FMLA"), is a federal law that applies to employers with 50 or more employees. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave during a 12-month period to an eligible female or male employee who needs leave: (1) for a serious health condition of the employee which renders him/her unable to perform the functions of his/her job; (2) to care for certain family members who have a serious health condition; or (3) to care for a newborn, adopted or foster child;

- All employers subject to the FMLA (employers with at least 50 employees within a 75 mile radius, and the employee seeking leave has worked at least 1,250 hours over the prior year) also are subject to the Massachusetts parental leave statute;

- Under the Massachusetts law, employers cannot require employees to exhaust PTO during their parental leave; under the FMLA, employers may make such a requirement;

- The two laws may, but do not necessarily, run concurrently. That is, an employee may take 12 weeks of FMLA leave prior to giving birth, and then, take 8 weeks of leave under the Massachusetts leave law. However, if an employee does not take leave prior to giving birth, she is entitled to a maximum of 12 weeks leave after giving birth. (Please note, an employee may be entitled to additional leave under disability laws.)

What happens to Vacation, Personal and Sick Time During Parental Leave:

If parental leave is unpaid, the employee must be permitted to use, concurrently with the parental leave, accrued paid sick, vacation or personal time under the following circumstances.

- Vacation or Personal Time

An employee may voluntarily use any accrued vacation or personal time he/she has concurrently with all or part of his/her parental leave. Employers cannot require an employee to use his/her accrued paid vacation or personal time concurrently with all or part of his/her parental leave.

- Sick Leave

If an employer provides paid sick leave, an employee may use such sick leave concurrently with any part of her/his parental leave that satisfies the employer's sick leave policy. An employer may not require an employee to use his/her accrued sick leave for any part of his/her parental leave that satisfies the employer's sick leave policy. The parental leave act does not in any way limit the right of an employee to use accrued vacation, sick leave or personal time before her/his parental leave begins, or after his/her leave ends, in accordance with the employer's policies and applicable law.

Are there other Employer Requirements?

Yes.

1. All employers must post a notice in a conspicuous place that describes the Parental Leave Act, as well as their own parental leave policy if it differs. A sample notice follows at the end of this summary, which follows the Massachusetts Parental Leave Act. Employer’s policies may differ.

2. We also recommend posting a Parental Leave Fact Sheet, which can be found at: http://www.mass.gov/mcad/documents/Parental-Leave-Fact-Sheet.pdf