Client Alert – New Massachusetts Parental Leave Law

On January 7, 2015, outgoing Governor Patrick signed into law “An Act relative to parental leave” (“Parental Leave law”), which will replace the Massachusetts Maternity Leave Law (“MMLA”), Mass. G.L. c. 149, §105D.  The new law took effect on April 7, 2015, and applies to employers with six or more employees, as well as employers of domestic workers.

Under the Parental Leave law, all eligible employees, both male and female, will have the right to take eight weeks of parental leave for the birth of a child, for the placement of a child under the age of eighteen (twenty-three if the child is mentally or physically disabled) for adoption, or for the placement of a child with an employee pursuant to a court order.  Parental leave may be paid or unpaid, at the employer’s discretion.

An employee will be eligible for protected parental leave after completing the employer’s probationary period, not to exceed three months, or, in workplaces without a probationary period, after three consecutive months of full-time employment.  If two employees of the same employer seek leave for the birth or adoption of the same child, they are limited to a combined total of eight weeks of parental leave.

As under the MMLA, employees seeking to take parental leave are required to give at least two weeks’ notice to theemployer of the anticipated start date for the leave and intention to return to work, but the new law allows for a shorter notice period if the delayed notice is beyond the individual’s control.

The new law confirms that employees must be restored at the end of the leave period to their previous, or a similar, position with the same status, pay, length of service credit and seniority.  Additionally, the new law obligates an employer who provides parental leave for longer than eight weeks to decide, in advance, whether the longer leave will affect the employee’s right to reinstatement or benefits.  An employer cannot refuse to reinstate an employee to the same or similar position, or deny other benefits at the end of the leave, unless the employer clearly informs the employee in writing before the leave begins, or before the leave is extended, that taking longer than eight weeks of leave will have those consequences.  There is an exception if, during the leave, the employer lays off similarly-situated employees due to economic conditions or if operational changes affect the employee’s job.  In that case, the employee would be entitled to preferential consideration for other available positions.

Under the Parental Leave law, an employee who is adopting a child must have the same benefits as an employee who takes parental leave for the birth of a child.  Additionally, parental leave must not affect an employee’s vacation and sick time, bonuses, benefits, promotions, seniority, length of service credit, or any other advantages or employment rights, except that the period of leave need not be included when calculating benefits owed to the employee.  If an employer covers the cost of benefits, plans, or programs during other leaves of absence, such as medical leaves, the employer should do the same for employees on parental leave.  Of course, the Parental Leave law is not intended to diminish the policies of any employers who offer more generous benefits than provided in the new law.

The Massachusetts Commission Against Discrimination (“MCAD”), which will enforce the Parental Leave law, has already updated its website to include a new fact sheet on the law.  We expect that the MCAD will issue a revisedworkplace poster describing the Parental Leave law for employers to post in a conspicuous location, as required by the new law.  We also expect the agency  to update its previous MMLA guidelines to help employers understand how the law has been expanded.   When it first published guidelines under the MMLA several years ago, the MCAD noted its position that a male employee could successfully challenge the constitutionality of the MMLA based on federal laws against sex discrimination, and encouraged employers to consider providing leave to both male and female employees.  The MCAD’s recommendation has now become the law.

Ensuring that your employment policies are up-to-date will be particularly important in 2015.  In addition to paying an increased minimum wage and implementing the new paid sick leave law, employers must also bring their workplace policies and posters into compliance with the new Parental Leave law.