Alert January 26, 2015

Parental Leave Act Amends Massachusetts Maternity Leave Act


On January 7, 2015, then-Massachusetts Governor Deval Patrick signed into law An Act Relative to Parental Leave (the Parental Leave Act or the PLA), which amends the Massachusetts Maternity Leave Act (the MMLA). The PLA will require covered employers to grant unpaid leave for certain parenting purposes (Parental Leave) to both male and female employees. To date, the MMLA has required only that employers grant this leave to female employees.

The expansion of leave rights to male employees has garnered the greatest attention. However, the PLA modifies the MMLA in some other respects as well. This Client Alert summarizes the PLA, including the provisions of the MMLA that remain unchanged by the PLA, as well as the new provisions.

When will the Parental Leave Act’s changes to the MMLA take effect?

The PLA will take effect on April 7, 2015.

What employers and employees will be covered by the PLA?

Employers with six or more employees will be required to provide Parental Leave.

A full-time employee (male or female) of a covered employer will be eligible for Parental Leave if he or she completes an initial probationary period set by the terms of his or her employment (not to exceed three months) or, if there is no such probationary period, after completing three consecutive months of work. Part-time employees will not be eligible for Parental Leave.

Previously under the MMLA, an initial probationary period could last longer than three months.

For what purposes will an employee have the right to use Parental Leave?

An employee may use Parental Leave for the purposes of caring for a child after:

1. The child’s birth;

2. The child’s adoption if the child is under the age of 18 (or under the age of 23 if the child is mentally or physically disabled); or

3. The child’s placement with the employee pursuant to a court order.

Previously under the MMLA, employees had the right to use Parental Leave only for birth and adoption purposes.

What rights does Parental Leave include?

1. An employee is entitled to receive eight weeks of Parental Leave, unless two employees of the same employer are the parents of the same child, in which case those two employees are only entitled to one aggregate period of eight weeks of unpaid Parental Leave between them (rather than 16 weeks between them). At the discretion of the employer, Parental Leave can be unpaid or paid and can last longer than eight weeks. An employee may take Parental Leave more than once per year, provided that each such leave is for a covered purpose (as described above).

In construing the MMLA, the Massachusetts Commission Against Discrimination (MCAD) took the controversial position that a multiple birth creates an entitlement to eight weeks of MMLA Leave per child (e.g., 16 weeks for the birth of twins). Presumably the MCAD will continue to take the same position under the PLA.

2. During Parental Leave, an employee is entitled to receive the same vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs that the employee was eligible to receive immediately before the Parental Leave began.

Exceptions and limitations:

  • An employer is not required to include an employee’s time spent on Parental Leave in the computation of his or her benefits, rights and advantages. For instance, if an employee has accrued 10.0 years of seniority and has three weeks of accrued vacation time as of the commencement of his or her Parental Leave, he or she may be returned to work eight weeks later with the same 10.0 years of seniority, and three weeks of accrued vacation time (assuming that no vacation time is used).
  • If an employee’s Parental Leave is unpaid, an employer cannot require an employee to use his or her paid vacation time or paid sick time for any part of his or her Parental Leave, although an employee may voluntarily choose to do so.
  • An employer is not required to pay the costs of an employee’s benefits, plans, or programs during Parental Leave if the employer does not pay such costs during other leaves of absence

3. Upon return from Parental Leave, an employee is entitled to be restored to his or her position (or a similar position) with the same status, pay, length of service credit, and seniority, and retaining any preferential consideration for another position.

  • Exception: An employer may lawfully decline to restore an employee to the same or similar position upon return from Parental Leave if employees with equal length of service credit and status in similar positions have been laid off during the Parental Leave due either to economic conditions or other changes in the employer’s operating conditions. Read literally, if the employee would have been laid off if no leave had been taken due to economic conditions but no one in a similar position is laid off, the employer must restore the employee to his or her position or a similar position.

Could an employee be entitled to more than eight weeks of Parental Leave?

Yes. If an employer agrees to provide more than eight weeks of Parental Leave or agrees to extend a leave period, it must treat the employee as entitled to the same rights upon return from such leave unless the employer also informs the employee in writing before the leave or the extension begins that taking more than eight weeks of leave or utilizing the extension will result in the loss of reinstatement rights.

Is an employee required to give notice prior to beginning and returning from Parental Leave?

An employee must provide notice to his or her employer two weeks prior to the date he or she plans to begin and the date he or she plans to return from Parental Leave, or as soon as practicable if the delay in providing notice is beyond the employee’s control.

Previously under the MMLA, there was no exception to the two-week notice rule.

How does the PLA interact with the federal Family and Medical Leave Act?

If an employer is covered by both the Family and Medical Leave Act (the FMLA) and the PLA and the employee meets the eligibility requirements under both laws, an employee’s leave may simultaneously qualify as leave under the FMLA (FMLA Leave) and Parental Leave. For example, an employee who takes Parental Leave will also qualify for FMLA Leave for the purpose of caring for a new child. In such an instance, provided that all FMLA requirements are met, the employee’s leave will count simultaneously against his or her 12-week FMLA Leave and his or her eight-week Parental Leave. However, where an employee’s purpose for leave is covered by the FMLA but not the PLA (e.g., FMLA Leave due to a pregnancy-related serious health condition), the employee’s use of FMLA Leave will not simultaneously count as Parental Leave.

Unlike the FMLA, the PLA does not require an employer to specifically designate leave as Parental Leave. Thus, if an employee takes leave for a Parental Leave purpose, such as caring for a newly adopted child under the age of 18, that leave will count towards that employee’s Parental Leave entitlement whether or not the employer designates it as such. If FMLA Leave, is not specifically designated in writing, that may affect the employer’s right to count it toward the employee’s 12-week FMLA entitlement.

Finally, note that under the PLA, employees may take Parental Leave more than once per year (provided that each such leave is for a covered purpose), but under the FMLA, employees are restricted to a maximum of 12 weeks of FMLA Leave in a 12-month period.

Is there a posting requirement under the PLA?

Yes. The PLA requires employers to post a workplace notice describing the PLA and their internal policies relating to the PLA.

What will be the consequences of violating the PLA?

The MCAD will be responsible for enforcing the PLA. To initiate an enforcement action, an employee must file a complaint with the MCAD within 300 days of the alleged violation. An aggrieved employee is entitled to the same remedies under the PLA as are available under Massachusetts General Laws Chapter 151B.

What should employers do before April 7, 2015?

Employers should update their policies and handbooks to reflect the gender-neutral nature and other facets of the PLA, and post the required notice.

Employers that plan to offer Parental Leave longer than eight weeks but not restore employees to their same or similar positions upon return must make sure to clearly inform employees in writing of that fact prior to the commencement and any extension of their leave.