In what has been hailed as a shocking development, the Massachusetts Commission Against Discrimination ("MCAD") recently announced that it will begin to apply the Massachusetts Maternity Leave Act ("MMLA") to men as well as women. This pronouncement was made by one of the MCAD Commissioners at a recent public event, and was later confirmed during a news interview.
The MMLA provides for eight weeks of unpaid leave in order to give birth, adopt a child under the age of 18, or to adopt a mentally or physically disabled child under the age of 23. The leave is job protected, and does not affect the employee's right to vacation time, sick leave, bonuses, or other benefits to which the employee was entitled at the time the leave began. Employees are eligible for this leave once they have completed any initial probationary period or, if there is no probationary period, after three consecutive months of full time employment. The statute applies to employers with six or more employees.
The statute establishing entitlement to the leave is found at Massachusetts General Laws, Chp. 149, Section 105D. By the terms of the statute, the maternity leave benefit applies only to "female" employees who meet the other requirements for the leave. Obviously, the MCAD is expanding this definition. Whether this action will withstand judicial scrutiny is an open question, but a major action by the MCAD based upon this position is sure to face a judicial challenge.
While we can expect the MCAD to downplay the impact of this policy shift, it is obvious to the human resources community that this is a radical departure from the past. What makes this most interesting, is that the statute itself specifically refers only to female employees and makes no provision for male employees. The MCAD's own website continued to acknowledge as much, even as the pronouncement was being made. The MCAD is now in the process of revising it's website and guidance.
Employers in Massachusetts should take this as an opportunity to review their existing Maternity Leave Policies, along with their Family and Medical Leave Act Obligations, to the extent applicable. The MCAD has placed employers on clear notice that it will now accept complaints by male employees who are denied requests for maternity leave.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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