Massachusetts’ Expanded Parental Leave Law Provides Equal Parental Leave to Men and Women and Increases Protections for Employees Who Take Leave

Massachusetts’ expanded parental leave law, An Act Relative to Parental Leave, goes into effect today.  The revised statute makes several significant changes to state law.  First, it removes any doubt about whether men are entitled to leave.  The amended law is gender neutral: men and women who work for employers with six or more employees are entitled to the same parental leave.  Employees who have completed an initial probationary period – as set by the employer, but not to exceed three months – are entitled to 8 weeks unpaid parental leave.  An employee who intends to take leave under the statute must provide 2 weeks’ notice of his or her anticipated departure date and intention to return, or provide such notice as soon as practicable if the reason for delay in providing notice is beyond the employee’s control.  An employee who takes leave under the statute must be reinstated to the same position or a similar position, meaning one that is comparable in terms of factors such as status and pay.

The second major change in the law clarifies when an employee is eligible for reinstatement.  While the state law mandates at least 8 weeks of unpaid leave, many employers offer benefits that exceed the minimum provided for under the state statute.  In 2010, the state’s highest court concluded that an employee who took more than the eight weeks leave provided for in the statute was not covered by the law’s reinstatement requirement.  The amended parental leave act clarifies that an employee is entitled to reinstatement unless the employer informs the employee – in writing, before the start of the employee’s leave and before any subsequent extension of that leave – that taking more than 8 weeks leave will result in denial of reinstatement or the loss of other rights and benefits.  In other words, the default is that employees are entitled to reinstatement and an employer who wishes to exclude an employee from this provision of the law must make its intention to do so clear.

We can only hope that few companies will choose to use the provision that permits them to deny employees reinstatement as a result of more generous leave benefits.  To do so would be to reduce a supposedly generous leave policy to an empty gesture: our handbook tells you we have a generous leave policy, but don’t take us up on it, because you may lose your job if you do so.  The United States is the only high income country that does not provide paid maternity leave, and while a small handful of states have laws providing some paid leave, Massachusetts does not.  Private employers, however, often fill the gap, recognizing that generous leave policies provide tangible and intangible benefits: when one major employer extended its paid maternity leave from twelve weeks to five months, the attrition rate for new mothers immediately dropped by fifty percent, while employee happiness increased.  (Employers who offer more generous benefits should also be aware that the federal antidiscrimination agency takes the position that any leave that extends beyond the “period of recuperation from childbirth,” meaning any leave for the purpose of bonding with or caring for a young child, must be provided equally to men and women.)

The updated law also clarifies the scope of the law.  An employee may take parental leave following the birth or adoption of a child, as well as following the placement of a child with the employee by court order.  If two employees who work for the same employer have a child together – whether through birth or adoption – they are limited to a total of 8 weeks leave.  The law does not, however, clarify whether an employee who has twins or multiples is entitled to 8 weeks per child or 8 weeks per event (i.e., birth, adoption, or placement of the children).  The state agency that enforces the leave law previously took the position that an individual was entitled to 8 weeks leave per child and is likely to continue taking that position; at least one judge, however, has refused to adopt this interpretation of the law.  The amended leave law does nothing to clarify this point.

Finally, the amended law broadens the notice requirement and mandates that every employer post in a conspicuous place a notice describing the law and the employer’s policies related to parental leave.

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