Table of Contents
Overview
The law provides eligible employees with 8 weeks of unpaid job protected leave for each a birth of a child or anticipation of birth of a child, or the employee intentions to adopt, bond, or care for a new child through permanent adoption placement.
Massachusetts took an unconventional approach with duration of leave, by allowing an 8-week period of leave for each multiple births/placements and incorporation of employer parental leave policies to abide by the regulations of the law.
Another nuance to the law is allowing time prior to the adoption or childbirth to prepare for the child’s arrival is included in the definition of ‘parental leave’. Particularly in adoption events, an employee can be eligible for this leave if they have applied for adoption or taken training, been evaluated for or any other steps showing adoption intent. Employees may therefore choose when parental leave can be applied which does not necessarily start at delivery or at final placement.
Massachusetts Parental Leave is managed by the Massachusetts Commission Against Discrimination (MCAD).
AbsenceSoft Policies
Massachusetts Parental Leave is configured in AbsenceSoft with the policy code and naming below:
-
Massachusetts Parental Leave MA-MATERN
Legislation codes and statues
The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document. Prior to April 2015, this law was previously called the Massachusetts Maternity Leave and has since been expanded to include all genders. The law is also known by the acronym MPLA:
-
Massachusetts General Laws, Part 1, Title 21, Chapter 149, Section 105D (Mass. Gen. Laws ch. 149 §105D).
Employer Coverage
Employers who have six or more employees. If employee is considered a domestic worker (cleaning staff in home, nanny, etc.) only one employee is necessary.
Exclusions:
-
Social clubs/fraternal associations not for private profit
-
Commonwealth political subdivisions, boards, departments or commissions
Employee Eligibility
Employees must be full-time and have satisfied an employer probationary period which must not exceed 3 months. The employee must also satisfy the requirement to notify their employer at least 2 weeks prior to and returning to work unless unforeseen circumstances prevent the employee from this notification requirement.
Exclusions:
Domestic workers (nannies, cleaners, etc.) do not need to meet the full time or probationary period. They only need to notify their employer at least 2 weeks in advance.
Qualifying Absence Reasons and Leave Duration
Duration requirements are more complex depending on multiple births or multiple placements, and the employer’s policies. Typically, the employee is able to take up to 8 weeks of leave per event, and if two employees are taking leave for the same event, an employer can choose to split the time between the two employees.
Massachusetts took unique approaches to leave duration as noted below:
-
Multiple births or multiple children in placement: Allows an 8-week period for each birth or adoption/foster care placement. For example, if an employee gave birth to twins, the employee is eligible for up to 16 weeks of unpaid leave.
-
Employer policy is longer than offered under MPLA, employees get the laws reinstatement rights extended to the employer’s policy, unless the employer notifies the employee prior to the leave or extension of leave that the employee won’t be afforded any additional reinstatement rights under the company policy.
Family Leave
-
Adoption/Foster Care: Engage in activities for the adoption, and/or care for and bond with a child before or after placement through adoption to be used within one year of the placement date. Child must be under 18 or up to age 23 if mental or physical disability1
-
Bonding: Care for and/or bond with a new child within one year of the birth.
-
Pregnancy/Maternity: Giving birth (preparing for childbirth, childbirth) to or caring for a newborn child within one year of birth.
Qualifying Family Member
-
Child under the age of 18.
-
Adopted/Foster Child no older than 23 who is mentally or physically disabled.
How Leave Can be Taken
Employees may take leave consecutively, intermittently, or reduced schedule for any qualifying reason.
-
Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.
-
Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave, and only when the employer agrees.
-
Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next. Reduced schedule approval is only when the employer agrees.
Certification Requirements
The regulations do not require an employee to provide certification or verification of birth or adoption. The employer may request documentation to support the birth or adoption of a child. However, MCAD does stipulate you may not request verification of a marital status.2
Pay and Benefits
Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur.
Use of Paid Time Off (PTO)
Employees may choose to use any employer accrued time including PTO, sick, vacation or personal time. Only if the employee has accrued sick leave under the Massachusetts sick leave law, the employer can require an employee to use the accrued sick leave.
Job Protection
Restoration to employment following leave in the same or similar position with same status, pay, and other terms of employment.
Other Protections
Employees are afforded protections against discrimination when they invoke their rights under MPLA, and against retaliation when an employee has filed a complaint or must testify against the employer for violations under MPLA.
Benefits
Employee benefits should remain intact while on leave. The employer does not have to pay the cost of the employee’s benefit premiums while on leave unless the employer has this practice for all other leaves.
Interaction with Other Laws
Where an employee meets the definition of family member or qualifying absence reason, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.
Family and Medical Leave Act (FMLA)
FMLA runs concurrently, where applicable. Nuances of the law should be considered such as the multiple births and the preparations for birth or adoption of child may not necessarily comply with the FMLA regulations.
Massachusetts Paid Family and Medical Leave(MAPFML)
MAPFML runs concurrently, where applicable. Nuances of the law should be considered such as the multiple births and the preparations for birth or adoption of child may not necessarily comply with the MAPFML regulations.
Massachusetts Small Necessities Leave (MANECESSITIES)
MANECESSITIES may run concurrently with MAMATERN in limited circumstances.
Employee and Employer Responsibilities
Employee Responsibilities
-
Provide 2 weeks’ advance notice of intent to take and return to work following parental leave unless foreseeable circumstances occur;
-
Follow proper call-out procedures and employer policies.
Employer Responsibilities
-
Posting requirements are as follows and all posters must be a place that is conspicuous/frequented by employees:
-
Posting notice is offered by MCAD
-
Employer parental policies must be included the notice as well
-
-
Notify employees in writing prior to leave or prior to leave extension if the employer policy will not offer job protections for length of leave longer than what is allowed under the law; and
-
Ensure probationary periods do not exceed 3 months for new hires.
Resources
http://Mass.gov : https://www.mass.gov/info-details/parental-leave-in-massachusetts
and https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/section105d
MCAD guidelines: https://www.mass.gov/mcad-guidelines-model-policies-and-posters
1 Massachusetts Commission Against Discrimination
2 MCAD Guidelines on Parental Leave Question 6.
3 MCAD Guidelines on Parental Leave question 12