Massachusetts Extends Parental Leave Rights to Employees Regardless of Gender

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By Sasha Thaler

Since 1972, the Massachusetts Maternity Leave Act (M.G.L. c. 149 s. 105D) has provided eight weeks of unpaid, job-protected leave to full-time female employees who meet certain eligibility requirements, on the occasion of the birth and, more recently, the adoption of a child.  One of former Governor Deval Patrick’s last official acts was to sign into law a revision of the MMLA that extends those rights and job protections to men, beginning on April 7, 2015.

The new Parental Leave Law retains many of the key provisions of the MMLA familiar to most Massachusetts employers:

  •  the law applies to employers with 6 or more employees;
  • the law provides for up to 8 weeks of unpaid, job-protected leave (an employer may, of course, choose to provide a longer leave period or paid leave);
  • to be eligible, employees must have completed 3 consecutive months of full-time employment, or a probationary period designated by the employer of the same or shorter duration;
  • the employee must give at least 2 weeks’ notice of the anticipated departure date (except where the need for leave is unanticipated), and state his or her intention to return;
  • employees returning from leave of up to 8 weeks must, in most circumstances, be reinstated to the same or similar position, with the same status, pay, length of service credit and seniority, where applicable; and
  • employers must provide for the cost of benefits, plans or programs during the parental leave to the same extent as for other types of leave.

The Parental Leave Act also includes some new provisions, including, among others:

  • in addition to leave for the birth or adoption of a child, employees may take leave in connection with the intention to adopt, or when a child is placed with the employee pursuant to a court order;
  • two employees working for the same employer are entitled to a maximum of 8 weeks between them for the birth or adoption of the same child;
  • employees on leave for an adoption must be given the same benefits as those on leave for a birth; and
  • employers who permit leave of longer than 8 weeks must provide the protections of the law to the extended leave unless clear written notice to the contrary is provided in advance.

While employers will have to become familiar with the new rights and obligations created by the Parental Leave Law, guidance on the MMLA previously issued by the Massachusetts Commission Against Discrimination will, in large part, continue to be applicable even after the expanded legislation goes into effect, and is available here.

 

The MCAD and others have long cautioned that the MMLA’s constitutionality could be challenged because it provided a leave entitlement only to women.  Massachusetts employers who do not already provide equal parental leave rights to employees of both genders should review their policies and prepare to expand their benefits.