Effective April 7, 2015, Massachusetts employers with six or more employees must provide childbirth leave on a gender neutral basis. Under a new Parental Leave Act law (“PLA”) signed by former Governor Deval Patrick on the day before he left office, Massachusetts men will now be guaranteed eight weeks of unpaid, job protected paternity leave. To that end, the PLA amends and replaces the existing Massachusetts Maternity Leave Act (“MMLA”), which provides childbirth leave only to female employees.
Under the PLA, any employee regardless of gender or primary caregiver status who has completed the employer’s probationary period, or at least three months of full-time employment, whichever is shorter, is eligible to take up to eight weeks off without pay. Such leave may be taken (1) for the purpose of giving birth or for the placement of a child under the age of 18, or under the age of 23 if the child is mentally or physically disabled, (2) for adoption with the employee adopting or intending to adopt or (3) for the placement of a child with an employee pursuant to a court order.
Employees who wish to take leave ordinarily must provide at least two weeks advance notice of their departure. Alternatively, however, employees may provide notice “as soon as practicable if the delay is for reasons beyond the individual’s control.” Where two employees of the same employer require leave for the birth, adoption or placement of the same child, they will be entitled only to an aggregate of eight weeks of leave.
Employers must restore employees to their previous or similar positions once they return from leave with the same status, pay, length of service credit and seniority. However, employers who provide leave in excess of eight weeks should take note: if you permit an employee to take more than eight weeks of parental leave, the employee retains his or her right to reinstatement and other benefits for the full duration of the leave unless you clearly inform the employee in writing prior to the beginning of the leave, and prior to any subsequent extension of the leave, that a leave longer than eight weeks will result in denial of reinstatement or a loss of other rights or benefits under the statute.
Notably, the PLA resolves a major inconsistency between the MMLA and guidance issued by the Massachusetts Commission Against Discrimination, which has advised employers to provide gender neutral leave because to do otherwise could violate state and federal anti-discrimination laws. The PLA also is consistent with existing federal law, which allows both new mothers and fathers to take up to 12 weeks of unpaid leave for purposes of childbirth or adoption. But that law, the Family and Medical Leave Act, applies only to businesses with 50 or more employees. The PLA is much broader in scope.
Covered employers must post a notice describing the PLA and the employer’s parental leave policy. Accordingly, employers with six or more employees are encouraged to consult with counsel to ensure that their current policies comply with the PLA and to draft the necessary notices.
