Right before leaving office, Governor Deval Patrick signed into law the Parental Leave Act, which amends the Massachusetts Maternity Leave Act (“MMLA”) by extending coverage of the law to male employees. The new law will become effective April 7, 2015.The former MMLA provided all female employees who had completed the employer’s initial probationary period (which cannot exceed three months) and had been employed full time for at least three months with eight weeks of job-protected leave in connection with the birth or adoption of a child. The new Parental Leave Act requires Massachusetts employers with six or more employees to provide gender-neutral parental leave. That is, it extends this right in Massachusetts to both male and female employees, and continues to require employers to restore employees who take parental leave to their previous or similar positions once they return to work, with the same status, pay, length of service credit and seniority (though no job restoration is required if other employees of equal status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions during the leave).The Parental Leave Act makes a few additional critical modifications to the MMLA, including:
- Covering employees who have a child placed with them pursuant to a court order, i.e., foster care
- Limiting the amount of leave that parents working in the same company can obtain, stating that any two employees of the same employer are entitled to only eight weeks in the aggregate of parental leave for the birth or adoption of the same child
- Leaving unchanged the MMLA’s requirement of two weeks’ notice of the anticipated dates of parental leave, but allowing an employee to give notice “as soon as practicable if the delay is for reasons beyond the individual’s control
- Requiring broader notice requirements, requiring all employers to “post and keep posted in a conspicuous place or places upon its premises a notice describing this section and the employer’s policies related to this section.” (This is in sharp contrast to the former language that read, “A notice of this provision shall be posted in every establishment in which females are employed.”)
While many employers (50 or over employees) are already required to provide paternity leave to eligible employees under the Family Medical Leave Act (FMLA), there are important differences between the FMLA and the new Parental Leave Act:
- While an employer can require an employee to use accrued paid time off during an FMLA leave, per Massachusetts Commission Against Discrimination guidelines, an employer cannot require an employee to use accrued paid time off during Parental Leave Act leave.
- FMLA leave is 12 weeks per year; MPLA is 8 weeks per birth/adoption/placement.
- Provided that all FMLA leave requirements are met, an employee’s leave will count simultaneously against both the employee’s 12-week FMLA leave and the employee’s eight-week Parental Leave. However, where an employee’s purpose for leave is covered by the FMLA but not the Parental Leave Act, the employee’s use of FMLA Leave will not simultaneously count as Parental Leave such that the employee will still be entitled to eight weeks of Parental Leave even if the employee’s FMLA leave is exhausted.
Before the Parental Leave Act takes effect on April 7th, employers in Massachusetts should carefully review their employee handbooks and parental/maternity leave policies and notices to make sure that they comply with the new law as described above, as any violation of the Parental Leave Act will soon be a violation of Chapter 151B, the Massachusetts law prohibiting employer discrimination, retaliation and harassment in the workplace, and will enable aggrieved employees to bring lawsuits to recover damages, attorney’s fees and possibly punitive damages.
Posted March 19, 2015