FAQs ABOUT THE MASSACHUSETTS MATERNITY LEAVE STATUTE

by Employment Law Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
Norwood Corporate Center
1500 Providence Highway, Suite 33
Norwood, MA 02062
(781) 551-0800
Llockard@leslielockard.com
www.leslielockard.com

The Massachusetts Maternity Leave Act, c.149, §105D, provides protected maternity leave rights to Massachusetts employees.

WHO IS ELIGIBLE FOR MASSACHUSETTS MATERNITY LEAVE ACT LEAVE?

The Massachusetts Maternity Leave Act applies to employers of six or more people. The Act provides that if a female employee has completed her initial probationary period (or if an employer has no set probationary period, if she has been employed for at least three consecutive months as a full-time employee), she is entitled to an eight week unpaid maternity leave for the purpose of giving birth, or adopting a child under 18 years of age (or under age 23, if the child is mentally or physically disabled).

MCAD GUIDELINES WHICH INTERPRET THE MASSACHUSETTS MATERNITY LEAVE STATUTE

The Massachusetts Commission Against Discrimination issued Guidelines which provide its interpretation of the Massachusetts Maternity Leave Act. Although they do not themselves have the force of law, the Guidelines provide information on the rulings the MCAD would probably make in future maternity leave cases. In addition, although a Court would not be required to follow the Guidelines, judges often do rely on such materials in interpreting laws.

Among the more significant points included in the maternity leave Guidelines are the following:

1. If a woman gives birth to or adopts twins, she is entitled to 16 weeks of unpaid leave, rather than the usual eight weeks to which a single birth mother is entitled.

2. An employer cannot require an employee to use accrued paid vacation or personal time concurrently with her maternity leave, nor can an employer require an employee to use accrued paid sick leave for any part of her maternity leave that satisfies the employer’s sick leave policy. This is so even if the employer requires people who take leave for other reasons to use accrued paid time. This differs from the federal Family and Medical Leave Act, which generally permits employers to impose such a requirement. An employee may voluntarily use any accrued paid vacation or personal time concurrently with all or part of her maternity leave, and may also use any sick leave concurrently with any part of her maternity leave that satisfies the employer’s sick leave policy.

3. If an employer generally provides pay, benefits or pays the cost of benefits to employees on other types of leaves of absence, the employer must provide the same pay, benefits or costs to employees on maternity leave. For example, if an employer generally provides pay to employees who are on extended sick leave, the employer must provide pay to employees on maternity leave. The MCAD takes this position even though the statute states that maternity leaves are unpaid.

4. If an employer grants a maternity leave of longer than eight weeks, and does not intend for full Massachusetts Maternity Leave Act rights (such as job restoration rights) to apply to the period beyond eight weeks, the employer must clearly inform the employee of this in writing before the leave begins.

5. The Massachusetts Maternity Leave Act gives eligible female employees the right to take maternity leave “for the purpose of giving birth or for adopting a child . . . .” The Guidelines provide a further definition of the phrase “for the purpose of giving birth”. The Guidelines define this as an absence from work for the purpose of preparing for or participating in the birth or adoption of a child, and caring for a newborn or newly adopted child. The Guidelines further state that maternity leave is available “at the time of the birth or adoption, but not substantially earlier or substantially later”.

6. The Guidelines further state the MCAD’s belief that the statute as presently drafted, which requires employers to give maternity leave only to female employees, may violate state and federal sex discrimination laws. The Guidelines state that since a man may successfully challenge the statute for providing parental leave only to women, “employers should consider” providing leave to men as well as women. In addition, the Guidelines state that providing maternity leave in excess of the eight weeks required by the MMLA to female employees only, and not to males, would presently in most circumstances constitute unlawful sex discrimination.

CONTACT ME

RETURN TO HOME PAGE