Legal Update: New Changes for Parental Leave
Many workers in Massachusetts do not qualify to take leave under the Family Medical Leave Act (“FMLA”).[1] Yet, at the same time, in a country where automatic leave to attend to the birth or adoption of child is rare, millions of employees rely on the FMLA to guarantee that their jobs will be available when they return work.
The Massachusetts Maternity Leave Act (MMLA), applies only to employees working in the Commonwealth, and was designed to fill in some of the FMLA’s coverage gaps for Massachusetts workers. This week new amendments expanded, clarified, and renamed the MMLA, “the Parental Leave Act.” Besides the snazzy gender neutral name, there are two big changes to the act:
- The amendments expand MMLA coverage to male employees; and
- The amendments clarify that the employees are eligible to take leave in situations where a child is placed with the employee pursuant to a court order.
If you are unfamiliar with the old MMLA or, looking for a refresher, keep reading, a comprehensive description of the eligibility requirements for the new Parental Leave Act, and the benefits it confers, follows.
To qualify for leave under the new Parental Leave Act, a male or female employee is eligible for leave where he or she:
- Works for an employer with at least 6 employees;
- Has completed the initial probationary period, not to exceed 3 months, or if there is no probationary period has worked for the employer for at least 3 consecutive months;
- Is absent for the birth, adoption of a child under the age of 18, or adoption of a child under the age of 23 if the child is physically or mentally disabled; an
- Provides his/her employer with at least two weeks of his/her anticipated departure date and intention to return to work (but the employee must only provide notice as soon as is practicable, so long as the delay in notice is beyond the employee’s control).
If the employee meets these eligibility requirements, then the employer must grant the employee 8 weeks of unpaid leave. An employer may not refuse to grant leave on the grounds that providing the leave would be a hardship for the employer.
Under the new law, if an employer permits an employee to take parental leave for a period longer than 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 denial of reinstatement or a loss of other rights and benefits. In addition, electing to take parental leave may not affect the employee’s rights to receive vacation time, sick leave, bonuses, advancement, seniority, and any other benefits for which the employee was eligible as of the date of the leave. However, the leave period need not be included in the computation of benefits.
Further, under the updated law it is clear that leave provided for the adoption of child must be identical to the leave provided for the birth of a child. In addition, the new amendments clarify that if two employees of the same employer give birth or adopt the same child, the employees are entitled to an aggregate of 8 weeks of leave – not 8 weeks each. The amendment also expands the notice requirement, mandating that all employers post a notice of the law’s requirements and the employer’s policies as to parental leave in a conspicuous place.
In the event that an employee is eligible for leave benefits under the FMLA and the new Parental Leave Act, leave under both laws must be taken concurrently when the eligible reasons are identical (the birth or adoption of the same child). Therefore, an employee who is eligible under both statutes would not get longer job protected leave.
However, in the case of pregnancy disability the two statutes can work together to lengthen job protected time. For example, a woman could leave work 12 weeks prior to the birth of a child under the FMLA, and then tack on eight weeks of leave under the Parental Leave Act to take care of her infant after deliver.
The two laws also differ in determining how the length of leave is calculated. The FMLA allows for 12 weeks in any 12 month period, whereas the Parental Leave allows for 8 weeks for each birth or adoption. A family that expects births of adoptions close together in a 12 month period, might qualify for two sets of 8 week leave under the Parental Leave Act.
Remember, if you are in a union, and these amendments provide greater benefits that those memorialized in your collective bargaining agreement, the law provides the minimum benefit, and trumps the collective bargaining agreement. Keep these amendments in mind as you prepare to bargain your next contract, and try to work with your employer to update the language of the contract to conform to the law.
[1] To qualify as a “covered employer” under the FMLA a private sector employer must have 50 or more employees. While virtually all public sector employers are covered employers under the FMLA. The qualify under the FLMA as an eligible employee you must: 1) work for a covered employer; 2) have worked at least the last 12 months; 3) have worked at least 1250 hours in the preceding 12 months, and work in a location where the employer has at least 50 employees within 75 miles.