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Massachusetts Expands Its Leave Law to Cover Fathers

This past September, we discussed the practical and legal implication of changing attitudes towards parental leave for fathers. Following up on this theme, Massachusetts recently passed a law, the Massachusetts Parental Leave Act (the “Parental Leave Act”), which will replace the current Massachusetts Maternity Leave Act (the “Maternity Leave Act”). The Parental Leave Act becomes effective on April 7, 2015 and, significantly, the new law expands parental leave benefits to covered male employees. This post will briefly analyze the Parental Leave Act and the new obligations it places upon Massachusetts employers.

Who Does the Parental Leave Act Cover?

The Parental Leave Act applies to:

  1. Massachusetts employers with six or more employees;
  2. male and female employees (unlike the Maternity Leave Act, which only applied to female employees); and
  3. employees who have completed the initial probationary period set by employers, not to exceed three months. If an employer has not set a probationary period, then the new law applies by default to those employees who have worked for said employer full-time for three consecutive months.

How Much Leave Does This New Law Provide?

Like the Maternity Leave Act, the Parental Leave Act provides 8 weeks of leave for covered events (see below). Employers have the discretion to decide whether to treat this as paid or unpaid leave. Note however, that if two employees (spouses, partners, etc.) working for the same employer seek leave for the same covered event, the law only entitles them to 8 weeks of leave in the aggregate for this event.

If an employer maintains a policy providing for longer than 8 weeks of parental leave, the employer cannot deny its employees their rights (e.g., right to reinstatement) under the Parental Leave Act, unless the employer also “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 longer than 8 weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.”

What Events Does This New Law Cover?

The Parental Leave Act permits employees to use leave for:

  1. The birth of a child;
  2. The adoption of a child under 18 years of age, or for the adoption of a child under 23 years of age if the child is mentally or physically disabled; and
  3. The placement of child pursuant to a court order.

What Are the New Law’s Notice and Posting Requirements?

The Parental Leave Act requires an employee to provide at least two weeks’ notice of: (A) the anticipated departure date; and (B) the intention to return to work. However, an employee may provide less than two weeks’ notice so long as he or she provides notice “as soon as practicable and the delay is for reasons beyond the individual’s control.” Premature birth would likely qualify as an event beyond an individual’s control.

Further, the Parental Leave Act’s positing requirements are more stringent than the Maternity Leave Act’s requirements. The Parental Leave Act requires that “[e]very employer . . . post and keep posted in a conspicuous place upon its premises a notice describing [the Parental Leave Act] and the employer’s policies related to [the Parental Leave Act].”

How Does the Law Protect Employees Out on Parental Leave?

Like the Maternity Leave Act, the Parental Leave Act protects employee benefits during leave:

[T]he 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 at the date of the leave, and any other advantages or rights of employment incidental to the employment position; provided, however, that the parental leave shall not be included, when applicable, in the computation of the benefits, rights and advantages; and provided, further, that the employer need not provide for the cost of any benefits, plans, or programs during the parental leave unless such employer so provides for all employees who are on leave of absence.

Similar to the Maternity Leave Act, the Parental Leave Act requires that, after the leave, the employer restore the employee to the “previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of the leave.” However, the new law provides an exception where other employees of equal length of service credit and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions affecting employment during the parental leave.

Where Does This Leave Us?

The Parental Leave Act becomes effective in less than three months and failure to provide the parental leave rights set forth in the law constitutes an unlawful employment practice, and therefore the potential for costly damages (including actual damages, punitive damages, and attorney’s fees and costs). Accordingly, companies should review their leave policies with counsel to ensure that they are revised and made compliant with this new law.

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Robert Sheridan