What Employers Need to Know About the Expanded Massachusetts Parental Leave Act

The new Massachusetts Parental Leave Act (“Parental Leave
Act”) took effect in April 2015.  The
Parental Leave Act replaces the Massachusetts Maternity Leave Act, M.G.L. c. 149,
§ 105D (“Maternity Leave Act”) and significantly expands parental leave rights
to employees in Massachusetts. 

Background

The Maternity Leave Act required employers with six or more employees to grant eligible female employees up to eight weeks of job-protected leave to give birth or to adopt a child.  In light of the fact that the applicable federal law, the Family and Medical Leave Act ("FMLA"), applies only to employers with 50 or more employees, the Maternity Leave Act (and the new Act) are of particular importance to Massachusetts employers with fewer than 50 employees.  The new Parental Leave Act expands the benefits and protections of Massachusetts law and extends them to both male and female employees.  

Who is covered?

The Parental Leave Act requires employers with six or more
employees to provide male employees, as well as female employees, eight weeks
of job-protected leave for the birth of a child, the adoption of a child under
the age of 18, or the adoption of a child under the age of 23 if the child is
mentally or physically disabled.  In the
event that both parents work for the same employer and seek leave for the same
event, however, the law only entitles them to eight weeks of leave in the
aggregate for the event.  Employees
become eligible for job-protected leave under the Act once they have worked
full-time for a period of three consecutive months.

Expanded Right to
Reinstatement Under the New Law

Under the new
law, if an employer permits an employee to take parental leave for a period
longer than the statutorily required eight weeks, the employee retains his or
her right to reinstatement for the full duration of the leave, unless
the employer clearly informs the employee in writing, prior to the commencement
of the leave and prior to any subsequent extension of the leave, that a leave
longer than eight weeks will result in the denial of reinstatement or a loss of
other rights and benefits. In addition, the law provides that the taking of
parental leave will not affect the employee’s rights to receive vacation time,
sick leave, bonuses, advancement, seniority, and other benefits for which the
employee was eligible as of the date of the leave, although the period of the
parental leave need not be included in the computation of any such benefits.

Paid or Unpaid?

The Parental
Leave Act allows for employers to provide paid or unpaid parental leave.

What Are An Employee’s
Notice Requirements?

Employees are generally required to provide “at least two
weeks’ notice” of: a.) the anticipated departure date; and b.) the intention to
return to work.  However, the new law
provides that 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.”  For
instance, premature birth would likely qualify as an event beyond an
individual’s control.

What Now?

Employers should consult with counsel to:

  • Review existing maternity/paternity leave
    policies to make sure that they are gender-neutral and meet the requirements of
    the new Parental Leave Act:
  • Discuss the Parental Leave Act’s posting
    requirements, which require that employers post a notice in conspicuous places
    within its premises explaining the Parental Leave Act and any company policies
    related to the law;
  • Update company handbooks/manuals, particularly
    where the materials contain outdated references to the Maternity Leave Act; and
  • Consider obligations under the FMLA, in addition
    to the new Parental Leave Act, for Massachusetts employers with 50 or more
    employees.

If
you have any questions about the information presented here, or have any
employment law concerns, please contact Julie B. Heinzelman at 617 456 8088 or jheinzelman@princelobel.com, the author of this
alert, or Daniel S. Tarlow, chair of the firm’s Employment Practice Group at
617 456 8013 or dtarlow@princelobel.com.