Massachusetts Employment Leave Act

 

 

Massachusetts has had a maternity leave statute since 1972. The law provides 8 weeks of leave to female employees who have met certain criteria. It is up to the employer whether the leave will be paid or unpaid. What Employers Are Covered ?

The Massachusetts maternity leave statute applies to all employers having 6 or more employees (other than non-profit clubs that are exclusively social in nature, or non-profit fraternal associations or corporations). Those eligible under the Massachusetts statute are female employees who have completed 3 months of work, or some other specified probationary period with the employer. The statute covers full time employees. The statute does not define the term “full time,” however, and the Massachusetts Commission Against Discrimination (the state agency that oversees and enforces this statute and all other anti-discrimination statutes) has no express policy regarding what constitutes “full time.” Nonetheless, the employer would be well advised to use the definition of “full time” it uses for other purposes. For example, this definition may be contained in an employee handbook or in the company’s benefit plans.

 

 

How the Act Works / Helpful Tips

 


 

1. The Massachusetts Maternity Leave Statute applies when an eligible female employee gives birth to or adopts a child under 18 years old (or under 23 if the child is mentally or physically disabled). As written, the statute permits leave to be taken at the time of the birth oradoption, but not substantially earlier or later than that time.

 

 2. The employee must give two weeks’ notice of her anticipated date of departure and of her anticipated return date.

 

 

3. If the leave is unpaid, the employer must permit the employee to use, concurrent with the maternity leave, accrued paid sick, vacation, or personal time, but the employer may not require the employee to use that accrued time.

 

4. Under most circumstances, there is no need to accrue seniority or to pay for any benefits, plans, or programs while the employee is on maternity leave. That being said, the employee may be entitled to receive benefits as a result of a collective bargaining agreement,company policy, or an employment agreement. In addition, if an employer generally provides these benefits to employees for leaves unrelated to maternity leaves, then the employer must provide the same benefits to employees on maternity leave.

 


5. When the employee returns to work, there can be no loss in the seniority or benefits to which she was entitled when she first went on leave. Note, however, that if morE senior employees in the same or similar positions are laid off while the employee is out on maternity leave, she need not be reinstated. [No Massachusetts court has ruled on the enforceability of this provision, but the U.S. Supreme Court upheld a substantially similar California law.]

 


6. The statute requires that the employer post a notice of the rights afforded under this statute wherever there are female employees.

 


7. An employer cannot refuse to grant leave to an eligible employee on the groundthat doing so would create a hardship.

 


 8. By its terms, the Massachusetts maternity leave statute applies only to female employees. In recently published guidelines, the Massachusetts Commission Against Discrimination suggested that providing leave to female employees only, and not to male employees, might violate federal anti-discrimination laws even though the employer has complied with state law. Indeed, the Equal Employment Opportunity Commission (the federal counterpart to the state agency), in a manual that provides guidelines for complying with all federal anti-discrimination laws, has stated that if an employer grants maternity leave, “the employer may not deny paternity leave to a male employee for similar purposes.” No Massachusetts court has considered whether the state statute violates other laws (for example, the state anti-discrimination statute, the Massachusetts Equal Rights Act, and Massachusetts Constitution), but employers may wish to consider providing leave to all employees, regardless of gender, so long as the other criteria of the statute are met.

 

 

 

 If you have been wrongfully discharged, denied uemployment benefits or have any employment issue, please call the Law Offices of Michael R. St. Louis for a free consultation at 781-816-3950 or contact us online.

 


 

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