FAQs ABOUT WORK/FAMILY BALANCE: MATERNITY, PATERNITY, CHILD CAREGIVER and FAMILY LEAVE RIGHTS IN THE WORKPLACE

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

(As of October 2007)

Significant changes over the past twenty years in our technology, our values, the types of work we do and the composition of our workforce have resulted in employers, employees and legislators increasingly turning their attention to concerns about work/family balance. Over my more than 20 years as an employment attorney, I have noticed that such matters are an increasingly common part of my practice. I expect this to be an area in which there will be rapid growth and development in the future. New statutes and regulations will probably be issued. We will also probably increasingly see voluntary employer adoption of “family friendly” policies and practices as a means of attracting and retaining good employees.

In this article, I will describe why employers are increasingly deciding to voluntarily offer work/family balance benefits. Next I will describe the current state of employee rights/employer obligations under federal and Massachusetts laws which address employee parental needs. I will progress chronologically from pregnancy, through childbirth, to child caregiving. I will then describe proposed “family friendly” legislation which may become law in the future, and take a brief look at what some other counties and states are doing with regard to work/family balance. I will lastly describe a number of specific types of work/family benefits that some employers are voluntarily offering.

WHY ARE EMPLOYERS, EMPLOYEES AND LEGISLATORS INCREASINGLY FOCUSING ON WORK/FAMILY BALANCE?

What are some of the changes that have lead to the trend towards greater work/family flexibility?

• Women now constitute almost half of the US labor force. About 70% of women with children under the age of 16 now work outside the home.

• Fewer than 20% of American households are composed of one spouse who works outside the home and another who is at home full time.

• The income earned by women is critical to the survival of many families, and accounts for more than a third of the income in homes where both spouses work.

• Between 1965-2003, the amount of time men spent in caring for their children tripled.

• Single parents head 10% of all households.

• Parental work hours have increased over the past 30 years, so that children now have about 22 fewer hours per week with their parents. About one out of eight couples work as many as 100 hours per week between them, and many parents work nights and weekends. Overstressed and overburdened parents often cannot be as effective parents as they would like, and cannot provide as much of the parental interaction that is so critical for early child cognitive development.

• Nearly 80% of workers report that they do not have enough time with their children and that they want more flexible work options. Many younger women are reporting that they want to take more than 12 weeks of FMLA leave to care for a new child. In a recent poll, 84% of male executives in Fortune 500 companies reported that they wanted more time for personal life, and more than half said that they would be willing to trade higher pay for more flexible work options.

• 20% of US households are responsible to some degree for the care of elderly relatives, with women being primarily the ones who carry out these responsibilities.

“These conflicts (between work and family responsibilities) are felt perhaps most profoundly by lower paid workers who are disproportionately people of color. Unable to hire a childcare provider, many couples “tag team” by working opposite shifts and taking turns caring for their children. In comparison to professionals, lower paid workers tend to have much less control over their schedules and are more likely to face inflexible employer policies, such as mandatory overtime. Family crises can sometimes lead to discipline or discharge when a worker violates an employer policy to address caregiving responsibilities.”

The EEOC further reported that three quarters of lower income workers have no paid sick days, and are less likely to have paid time available to them during maternity/paternity leaves. A 2001 Department of Labor study revealed that 77% of those who were eligible for and needed FMLA leave, but decided not to take it, did so because they couldn’t afford it. These employees therefore had less of an opportunity to engage in the child-parent bonding which is so critical to early child development.

Work-family conflicts also adversely impact higher income professional women.The fact that women predominate as child caregivers probably contributes significantly to the “glass ceiling”. Despite earning about half of college degrees, women are greatly underrepresented in the higher levels of the corporate world, including in officer and manager positions, among Fortune 500 CEOs, on corporate boards of directors, and among those awarded partnerships in law firms.

Men are adversely affected as well. Lower income men form half of the “tag team” approach to childcare described above. And even more so than women, many men who would love to take time off to be with their children report fearing that if they do, they will be viewed as uncommitted workers, and deselected for promotions and advancement.

However, many businesses are increasingly deciding to adopt policies and practices which accommodate their employees’ needs to be both dedicated workers and good caring parents. A number of factors seem to be contributing to this trend:

• Our Massachusetts economy has shifted from a manufacturing base to one in which service and technology businesses predominate. Former Undersecretary for Business Development in the Deval Patrick administration Robert Coughlin recently stated that what attracts businesses most to Massachusetts is our well educated and very productive workforce. Because of our profusion of excellent universities, many of our businesses are high tech operations which need highly skilled and educated workers. This trend is likely to increase as the Deval Patrick administration is working aggressively to attract and retain such businesses, including alternative energy, environmental and biotech companies. Businesses which need to attract and retain the best, most highly skilled workers may be more likely than others to adopt family friendly policies which accommodate the realities of their employees’ lives. An expanding number of studies have reflected that employees are more likely to approach their work in a committed, thoughtful and innovative fashion, and provide better customer service, if they feel that their employer is supportive of their family needs. Employees with high morale and commitment to their work often lead to increased customer satisfaction and loyalty, and increased profits.

• Advances in computer and communications technology make teleworking much more feasible for many employees. The types of highly skilled jobs which now predominate in Massachusetts often give themselves more readily to teleworking than do traditional manufacturing assembly line positions.

• Employees will generally work more productively if they are not stressed and distracted by concerns about their children's welfare. A number of studies have shown that mothers working less than full time schedules often work as productively in their shorter work time than do many workers working full time. In a 2005 study, almost half of the employers which offer work-family balance benefits said they did so to recruit and retain good employees, and one quarter said they did so mainly to enhance productivity and employee commitment to their work.

• Another benefit to offering such benefits is avoiding the costs of employee turnover and retraining. A study of 99 companies offering flexible work policies reflected that those companies consistently outperformed the Standard and Poor 500, and experience half as much turnover as the national average. In particular, businesses are able to retain their female workers who have children. The accounting firm of Deloitte and Touché calculated that its flexible work policies allowed it to avoid $41.5 million in turnover costs in 2003 alone. Retaining good employees may become even more critical in coming years, as many Baby Boomers retire, making labor more scarce. In addition, studies of Generation X and Y workers (born between the mid 1960s and late 1990s) reflect that they tend to be more insistent than their parents on the ability to control their work schedules and to spend more time with their families. Having grown up in the era of corporate downsizing and mass layoffs, they also tend to be more willing to change employers to obtain family flexibility.

• In a Department of Labor study of the Family and Medical Leave Act issued in June of 2007, many employers and employees reported that when employers were sympathetic and helpful to employees who needed FMLA leaves, an increase in employee loyalty resulted.

PREGNANCY

Among the sources of protection for pregnant Massachusetts residents are:

• the Massachusetts Maternity Leave Act (MMLA) and the Massachusetts Commission Against Discrimination Guidelines Relating to the MMLA (applicable to most Massachusetts employers of 6 or more employees);

• state and federal laws against sex discrimination, since pregnancy is a sex linked characteristic (the state law is applicable to most employers of 6 or more employees, the federal to most employers of 15 or more employees);

• the federal Pregnancy Discrimination Act ( applicable to most employers of 15 or more employees).

• the Family and Medical Leave Act (applicable to most employers who employ 50 or more employees at the employee’s work site, or within 75 miles of that work site)

• Fire an employee or take other adverse employment actions against her, such as selecting her for layoff or denying her a promotion, because she is pregnant.

• Base adverse employment decisions on stereotypical assumptions about the effect of pregnancy, whether the employer is motivated by hostility or by benevolent, protective motives. For example, an employer should not decide that a pregnant employee should do no heavy lifting, or that she should not be given a promotion because she will probably be too tired during her pregnancy to carry out increased responsibilities.

• Make pregnancy based inquiries, such as asking an employee if she is pregnant before deciding whether to give her a promotion, or asking a prospective hire whether she plans to start a family in the next year;
• Treat a pregnant worker who is temporarily unable to perform some of her job duties due to pregnancy less favorably then workers whose job performance is similarly restricted as a result of other types of conditions.

• Decide for a pregnant employee that she should stop working at a particular time during her pregnancy

The Massachusetts Maternity Leave Act (MMLA) will be described in more detail below, in the section which describes employee rights after a baby joins a family. However, the Guidelines issued by the Massachusetts Commission Against Discrimination (MCAD) describe some employee protected rights during pregnancy as well. In this regard, the MCAD in its MMLA Guidelines has stated:

“Pregnancy and childbirth are sex-linked characteristics, and any actions of an employer that adversely affect an employee because of her pregnancy, childbirth or the requirement of a maternity leave may constitute sex discrimination.

An employer may not deny a woman the right to work or restrict her job functions, such as heavy lifting or travel, during or after pregnancy or childbirth when the employee is physically able to perform the necessary functions of her job. The mere fact of pregnancy does not automatically establish a disqualifying disability. An employer may not, therefore, use a woman's pregnancy, childbirth or potential or actual use of MMLA leave as a reason for an adverse job action, such as refusing to hire or promote a woman or for discharging her, laying her off, failing to reinstate her or restricting her duties. An employer may not, moreover, force a pregnant woman to take leave prior to giving birth if she is willing to continue working, nor can an employer prevent her from returning to work after she recovers from any temporary disability associated with her pregnancy or a related condition. Similarly, an employer may not treat an employee returning from maternity leave less favorably than it treats other employees seeking to return to work after comparable absences for non-pregnancy reasons.”

The Pregnancy Discrimination Act

The federal Equal Employment Opportunity Commission (EEOC) has provided the following information in summary of the federal Pregnancy Discrimination Act:

“This statute is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. The statute applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

Title VII's pregnancy-related protections include:

Hiring

An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers.

Pregnancy and Maternity Leave

An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

Health Insurance

Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis. The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed. Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Fringe Benefits

Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.”

PREGNANT EMPLOYEES' RIGHTS WITH REGARD TO ILLNESSES, COMPLICATIONS OR DISABILITIES DUE TO PREGNANCY OR CHILDBIRTH

The main sources of pregnant employees’ rights as to pregnancy or childbirth related illnesses, complications or disabilities are the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act, the state disability discrimination statute (applicable to most employers of 6 or more employees) and the federal Americans With Disabilities Act (ADA) (applicable to most employers of 15 or more employees).

The State Disability Discrimination Statute and the federal ADA

The federal Americans With Disabilities Act (ADA) and the state disability discrimination statute are generally quite similar. Both prohibit employers from discriminating against qualified disabled people, and also impose an affirmative obligation to provide reasonable accommodations to disabled employees, if doing so will permit them to perform the essential functions of the job. The word “disability” is defined broadly in these statutes. A person is considered disabled if she/he has any physical or mental impairment which substantially limits him/her in one or more major life activities, such as speaking, hearing, walking, breathing, reproducing, etc. Pregnancy itself is not a disability under either statute. However, complications arising from pregnancy may be considered a protected disability if they are severe enough to meet the definition of an “impairment”. For example, pronounced preeclampsia may well be deemed a disability. One type of “reasonable accommodation” an employer is required to provide is time off when an employee cannot work and/or needs to obtain medical treatment for a disability, if doing so will likely permit the employee to return to work within a reasonable time, able to perform the essential functions of her job. However, if granting the leave would impose an undue hardship on the employer, the employer need not provide it. The threshold for establishing an "undue hardship" is generally quite high, however.

The Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) entitles an eligible employee to 12 weeks of annual job protected leave. Among the reasons entitling an employee to such leave is if he/she has a serious health condition which renders the employee unable to perform the functions of his/her job. FMLA regulations state that an expectant mother qualifies for leave based on a serious health condition before the birth of the child for prenatal care or if her condition makes her unable to work. In fact, one of the definitions of “serious health condition” is “any period of incapacity due to pregnancy or for prenatal care”. In a recent report, the Dept. of Labor stated that the legislative history of the statute describes this definition as referring to “ongoing pregnancy, miscarriages, complications or illnesses relating to pregnancy, the need for prenatal care, childbirth and recovery from childbirth”. Mothers can also take leave after birth to care for a new baby. Because an employee is generally entitled to only 12 weeks of FMLA leave per year for any of the purposes for which leave can be taken, leave used during pregnancy would generally be subtracted from the amount of leave a mother could after the birth of her baby. However, such leave would not be subtracted from the eight weeks of leave to which an employee would be entitled under the Massachusetts Maternity Leave Act (see below for more details about MMLA leave).

EMPLOYEE RIGHTS TO MATERNITY OR PATERNITY LEAVE AFTER A CHILD JOINS THE FAMILY BY BIRTH, ADOPTION OR FOSTER CARE

The two primary sources of maternity and paternity leave rights after a child joins the family by birth, adoption or foster care are the Massachusetts Maternity Leave Act and the federal FMLA.

The Massachusetts Maternity Leave Act

The Massachusetts Maternity Leave Act (MMLA), MGL c.149, §105D, provides protected maternity leave rights to Massachusetts employees. 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). She must give at least two weeks’ notice of her anticipated date of departure and her intent to return to work after leave. If an employer continues to pay for benefits such as health insurance while employees are on other types of leaves, the employer must pay for such benefits for employees on maternity leave as well. An employer must generally return an employee after MMLA leave to the same or a “similar” position, which means one with the same status, pay, length of service credit and seniority. An employee is entitled to no greater job restoration rights than she would have enjoyed if she had not taken leave. For example, if a company decides to outsource its accounting functions and lays off all its accountants while a female accountant is on maternity leave, the accountant on leave is not protected from layoff. An employer cannot discriminate against an employee because she has taken maternity leave, or because the employer anticipates that she will do so. An employer cannot for this reason fire an employee, select her for layoff or deny her a promotion, nor can it decide not to hire an applicant on this basis.

The Massachusetts Commission Against Discrimination issued Guidelines which provide its interpretation of the Massachusetts Maternity Leave Act. Although they do not themselves have the direct 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 generally do rely on such materials in interpreting laws, since they have been issued by an agency charged by the legislature with interpreting and enforcing discrimination laws.

Among the more significant points included in the Massachusetts 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 need not be paid.

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 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. The argument for male eligibility for MMLA leave is probably strengthened by the fact that marriages between two men are now equally valid in Massachusetts as marriages between a man and a woman. Many same sex male marriages bring children into their families.

7. If an employee is eligible for both 8 weeks of MMLA leave and 12 weeks of FMLA parental leave, she is not entitled to stack them and take a total of 20 weeks of leave. An employer has the right to designate these types of leave as running concurrently.

Maternity/Paternity Leave Under the FMLA

Both fathers and mothers are entitled to take up to 12 weeks of leave per year for the purpose of caring for a newly born child, or a child under age 18 (or 23 if disabled) who joins the family by adoption or foster care. If the need for leave is foreseeable based on the expected arrival of a child, the employee must give at least 30 days’ notice of the intent to take FMLA leave. Employers must generally maintain the same type of group health coverage for an employee on FMLA leave that it would have provided if the employee continued to work during the leave. Although employers generally need not pay employees for time spent on FMLA leave, the employee may use any accrued, unused paid vacation or personal leave during FMLA parental leave. If the employee does not choose to use his/her accrued paid leave, the employer can require him/her to use it. Thus, an employee is not legally entitled to stack 12 weeks of FMLA leave and three weeks more of paid vacation time. FMLA maternity/paternity leave must be taken within the first year after a child joins the family unless the employer agrees otherwise. Also, unless the employer agrees otherwise, FMLA maternity/paternity leave must be taken all at once, on a full time basis, rather than on an intermittent or on a part time basis. If an employer employs both the mother and father who are eligible for FMLA leave, the parents must split one 12 week allotment of leave. For example, the mother might take eight weeks and the father four.

With limited exceptions, the employee must be returned when leave ends to his/her same position, or to an equivalent position, with equivalent pay, benefits and other terms and conditions of employment. Employers cannot discriminate or retaliate against employees because they take FMLA leave, or the employer anticipates that they will take FMLA leave. The fact that employees take FMLA leave cannot be counted against them in any way. For example, if an employer gives annual perfect attendance bonuses, an employee whose attendance is perfect except for 12 weeks of FMLA leave would be entitled to a perfect attendance bonus.

The FMLA regulations also state that an eligible mother or father must be permitted to take FMLA leave before a child is placed by adoption or foster care if absence from work is required for the adoption or foster placement to take place. For example, the employee may be required to attend counseling sessions, appear in court, consult with an attorney or doctors, or submit to a physical examination.

Employee Breastfeeding Rights

I have found no federal or Massachusetts laws that provide mothers with protected breastfeeding rights in the workplace. Nor have I found any state or federal case law applicable in Massachusetts which discusses employee workplace breastfeeding rights. However, there is a bill pending in the Massachusetts legislature which would require employers to permit nursing mothers to express breast milk during meal or break times. Whether or not that bill becomes law, an employer who receives a request or has an issue arise relating to breast feeding would be well advised to consult an employment attorney. A mother should probably be allowed to take time in a private place to express breast milk, since failure to do so can be painful and distracting, and lead to complications such as infections.

WORKPLACE RIGHTS OF PARENTS WITH CHILDCARE RESPONSIBILITIES

The primary source of workplace rights of employees with childcare responsibilities is a set of Guidelines issued by the EEOC in 2007.

THE 2007 EEOC GUIDANCE ON UNLAWFUL DISPARATE TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES

In May of 2007, the EEOC issued an “Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities. A Guidance does not have the same force of law as a statute or regulations, but it illustrates how the EEOC will interpret and apply the law in cases brought before it. Courts will also often give deference to such guidelines in interpreting the law. Our state Commission Against Discrimination will likely do so as well.

Parents with caregiving responsibilities are not a directly protected group under state or federal discrimination laws. Thus, the Guidelines state, an employer does not violate the federal discrimination law, Title VII, if it treats both working mothers and fathers in a similarly unfavorable (or favorable) manner as compared to childless workers. However, discrimination or harassment of female or male child caregivers may constitute a violation of the laws against sex and disability discrimination.

Unlawful Sex Discrimination Against Employees with Child Caregiving Responsibilities

Some of the factors the EEOC stated that they consider in determining whether an employer has treated child caregivers adversely, in violation of federal sex discrimination requirements, are the following:

• Whether the employer asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities.

• Whether company decision makers or other officials made comments or took actions that reflect stereotypical or derogatory attitudes about pregnant workers or about working mothers or other female caregivers. Examples: Assuming that mothers will be less dependable workers, will not be as committed to their work or should not be offered--or will not accept--jobs that involve long hours or travel, or a promotion that involves relocation to another city. Making comments regarding a teleworking mother such as “How much work could she be getting done at home with two little kids underfoot?”

• Whether, despite the absence of a decline in work performance, the employer began subjecting women to less favorable treatment after they became pregnant or assumed caregiving responsibilities. Example: Assuming that a mother with childcare responsibilities will not have her mind fully on her work or will be less dependable or available, and therefore deciding not to give her a promotion or allow her to participate in an executive training program.

• Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers;

• Whether the employer steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions, even for “benevolent” reasons; Example: transferring a new mother (unless she requests such a transfer) to less demanding or challenging work to protect her from exhaustion or stress, or to give her more time to be with her children

• Whether male workers with caregiving responsibilities received more favorable treatment than female workers;

• Whether the employer denied childcare benefits to male employees that it grants to female employees because of stereotypical assumptions that women are or should be the ones who take care of children. Examples: An employer offers up to one year of unpaid leave for personal reasons, including to care for a new child, but the employer refuses to allow a male worker to take leave to care for a newly adopted son. An employer tries to keep some part time shifts available to employees who need such a schedule to care for children, and denies such a shift to a male care giver, saying that it wants to reserve such shifts for mothers.

• Whether stereotypical assumptions begin coloring an employer’s subjective assessments of female employees after they assume childcare responsibilities. In this regard, the Guidelines state that EEOC investigators should look for evidence of 1) Changes in an employer’s assessment of a worker’s performance that are not linked to changes in the worker’s actual performance and that arise after the worker becomes pregnant or assumes caregiving responsibilities; 2) Subjective assessments that are not supported by specific objective criteria; and 3) Changes in assignments or duties that are not readily explained by nondiscriminatory reasons.

Discrimination on the Basis of Caregiving Responsibilities for a Disabled Child

The Guidelines state that an employer cannot lawfully refuse to hire, or make an adverse employment decision about, a worker based on stereotypical assumptions about the worker’s ability to satisfactorily perform his job duties because of his/her need to care for a disabled child. For example, an employer could not refuse to hire a woman whose child has asthma on the assumption that the mother will need to be frequently absent. Similarly, an employer could not deny a man whose child has cancer a promotion on the assumption that he will be distracted and often absent from work.

Hostile Environment Harassment

According to the Guidelines, employers cannot subject pregnant employees or parents with childcare responsibilities to harassment on the basis of those characteristics. For example, pregnant employees should not be subjected to ridicule based on the changes that take place in their bodies during pregnancy. They also should not be subjected to such comments as “Now that you are going to have a baby, maybe you should think about whether you still want to be a supervisor”, or “Now that you have children, I suppose you are going to want the rest of us to take up the slack for you”. Employers also cannot harass employees on the basis of caring for a disabled child. The example they provide of this is an employer subjecting such an employee to different rules from other employees, such as requiring him to give one week’s notice of an absence; removing the employee from team projects “considering your boy’s illness”; and setting unrealistic project deadlines and yelling at the employee in front of coworkers about his expected inability to meet those deadlines.

The full text of these Guidelines is available at www.EEOC.gov.

The State Small Necessities Leave Act

The Small Necessities Act is a Massachusetts state statute which applies to most employers "who employ 50 or more employees". The statute requires employers to grant eligible employees a total of 24 hours of unpaid leave per year for several purposes which aren't covered by the federal Family and Medical Leave Act (FMLA):

1. To participate in school activities directly related to the educational advancement of the employee's child, such as parent-teacher conferences or interviewing for a new school (a school is defined as an elementary or secondary school, a Headstart program or a day care facility – not a college);

2. To accompany the employee's child or elderly relative (at least 60 years old) to routine medical or dental appointments, or to appointments for other professional services relating to the elderly relative's care, such as interviewing at nursing homes.

The Massachusetts Attorney General's office has issued Guidelines for the interpretation of the Small Necessities Leave Act. The Guidelines state that employers should he liberal in interpreting the purposes for which leave may be taken, so in case of doubt, employers probably should let the employee take leave. For example, if an employee wants to attend a child's soccer game or school play, that may well be covered.

To be eligible for Small Necessities leave, an employee must have worked for the employer at least 12 months, and must have worked at least 1250 hours for that employer during the last year. If the need for Small Necessities leave is foreseeable, the employee must give the employer not less than seven days' notice before beginning leave. If the need for the leave is not foreseeable, the employee must give "such notice as is practicable". The Attorney General's office has issued a leave certification form for employers to have employees fill out. Employers don't have to use that form, but they can use it if they want to with confidence that it is legally acceptable. Employees who take Small Necessities leave are still entitled to their full twelve weeks of annual FMLA leave.

As under the FMLA, an eligible employee may choose, or the employer may require the employee, to substitute for unpaid Small Necessities Act leave any accrued paid vacation time, personal leave, or medical or sick leave. Be aware, though, that if an employer requires employees to use paid leave, and if an employee has already used all his paid leave before requesting Small Necessities leave, he is still entitled to 24 hours of unpaid leave. Employees may take Small Necessities leave intermittently or on a reduced leave schedule, in increments as small as one hour, as is permitted under the FMLA. The Small Necessities Act is patterned after the FMLA, and, in fact, the Small Necessities Act specifically states that the provisions of the FMLA apply to Small Necessities leave unless the Small Necessities Act specifically states otherwise.

The Small Necessities Leave Act gives rise to a potential pitfall of which employers should be aware. Most businesses employ some executive, administrative or professional employees exempt from federal overtime pay requirements. The Small Necessities Act permits employers to dock the pay of employees who take this kind of leave, because this leave does not have to be paid. However, under federal overtime laws, if an employer docks the pay of an exempt employee who takes less than a full day off, this could be deemed evidence that the employee is non-exempt, and entitled to overtime pay. If an employee who was treated as exempt is later deemed to be nonexempt, the employer could be required to pay two or in some cases three years of back overtime - not only to that employee but to other similarly situated employees. That could add up to a huge amount of money. Under the FMLA, employers can dock the pay of an exempt employee who takes less than a full day of FMLA leave without running this risk. However, that is because there is a specific federal regulation stating that this can be done. The federal regulation applies only to employees taking FMLA leave though, not to those taking leave under a state statute like the Small Necessities Act.

Requiring A Parent to Work Long Overtime Hours That Interfere With Her Childcare Responsibilities Does Not Violate Massachusetts Public Policy

One Massachusetts case that dealt with childcare responsibilities was decided in favor of the employer. In the 1997 case of Upton v. JWP Businessland, the plaintiff was a single mother who was discharged when she told her employer she could not work for several months from 8:15 AM until 9:00 or 10:00 each week night, and all day Saturday. She had been hired to work from 8:15 AM to 5:30 PM and had made her childcare arrangements accordingly. She brought suit claiming that although she was an employee at will, her termination violated public policy, in particular the strong public policy favoring the care and protection of children. The public policy discharge exception to the employee at will rule is narrowly interpreted in Massachusetts. Although our state Supreme Judicial Court stated that it sympathized with the employee’s difficulties in reconciling her parental needs with the demands of employment, the Court found that her situation should not be deemed to fall within the narrow public policy exception to the employment at will rule.

The FMLA Permits Employees to Take Leave to Care For a Child With a “Serious Health Condition”

The FMLA was one of the first pieces of legislation signed into law by the Clinton administration in 1993. One of the law’s main proponents was Al Gore, who had gotten to know a number of parents at the hospital where he and his wife were caring for their son after he had been seriously injured in an accident. Vice President Gore was particularly struck by a mother and a father who were both fired while spending time caring for a seriously ill hospitalized child. Mr. Gore said that he believed that it was wrong to force people to choose between the jobs they need for their livelihood and being good parents to an ill or injured child.

The FMLA entitles eligible employees to up to 12 weeks of job protected leave per year. One purpose for which FMLA leave can be taken is to care for a child with a “serious health condition”. There are detailed regulations which define what will be deemed a “serious health condition”. In essence, a "serious health condition" is an illness, injury or condition that involves inpatient care or continuing treatment by a healthcare provider. Generally, unless complications arise, colds, flu, earaches, upset stomachs, minor ulcers, headaches other than migraines, routine dental or orthodontia problems and periodontal disease do not constitute serious health conditions. More information about the FMLA and serious health conditions is available at www.dol.gov.

PENDING LEGISLATION WHICH WOULD ENHANCE CHILDCARE AND FAMILY LEAVE RIGHTS

There is legislation pending in both the state and federal legislatures which would enhance childcare and family leave rights.

State Legislation

There are currently pending before the Massachusetts Legislature the following bills:

1. An Act Supporting Strong Families By Providing Paid Family Leave, Increasing Tax Deductions, And Establishing A Work Family Council. Among other things, this bill would establish a Strong Families Trust Fund, to which would be deposited premiums which would be collected from employees by means of deductions from their paychecks. The money in the fund would be used to provide paid leave to employees who take leave for any of the purposes for which FMLA leave may be taken. Eligible employees would receive a stipend in the amount of 80% of their wages or salary, up to a maximum amount, which would be $750 per week in 2008 and 2009. The statute would also permit employees of employers of 6 or more employees (not 50, as under the FMLA) to take job protected leave for purposes for which FMLA leave can be taken, if the employee has been employed by the employer for at least 12 months, and has worked 1250 hours for the employer during the past 12 month period. Employees would be eligible for the stipend if they have been paid wages of not less than $3000 from which fund deductions have been taken in any 12 month period, and who, at the time leave begins, have been employed for at least 12 weeks by the employer from whom leave is requested and have provided at least 216 hours of service.

2. An Act Providing Unpaid Family And Medical Leave This bill would extend FMLA leave to employees of employers who employ 35 or more employees, rather than the 50 employees required for the FMLA to be applicable.

3. An Act Relative to Paid Sick Days This bill would require all Massachusetts employers to provide 7 paid sick days per year to be used when the employee is ill/injured, or to care for an ill/injured child, parent or spouse, or to attend routine medical appointments for the employee, the employee’s child, or a parent or spouse in need of care. A pro rata amount of paid sick leave would be available to employees who work 30 hours per week or less.

Governor Deval Patrick’s Educational Improvement Measures

The Deval Patrick Administration is in the process of instituting comprehensive reforms and improvements throughout our educational system, from preschool programs up through lifelong learning programs. Some of these reforms will positively impact working parents. For example, early education programs will provide care and education to pre school children, most of which will fall during parental working hours. Governor Patrick also plans to lengthen school hours, which will not only provide greater educational opportunities to children but also relieve the need for their parents to provide or arrange for child care during those extended hours.

Work Family Balance Legislation Pending In The US Congress

Among the work family balance related legislation pending in US Congress are the following:

1. The Family Leave Insurance Act of 2007. Senator Chris Dodd is one of the sponsors of this bill, which would provide 8 weeks of paid leave to employees who take leave for an FMLA covered purpose. Employees, based on the amount they earn, would receive a percentage of their earnings based on a sliding scale, with employees who earn $20,000 per year receiving 100% of their earnings, and those who earn $60,000-97,000 per year receiving 40%. The fund would be financed by employee contributions in the amount of 0.2 per cent of their earnings, matched by their employer. The federal government would pay any administrative expenses not covered by those contributions.

2. The Healthy Families Act Senator Kennedy is a sponsor of this bill which would require employers of 15 or more employees to provide 7 paid sick days to all employees, so that employees can take days off for their own illness or for a child’s without fear of losing their wages or their jobs.

3. In August of 2007, the US Senate passed a bill that would allow relatives of wounded soldiers to take up to 26 weeks of unpaid leave to care for them.

4. Senator Kerry and others have sponsored legislation to provide a tax credit to help teleworking parents defray the costs of home office equipment such as lap tops and fax machines.

5. A bill to allow employers to grant non exempt employees comp time instead of overtime pay has been pending in Congress for years. Allowing covered employees and employers to substitute comp time for overtime pay would allow employees more time off with their families.

WHAT ARE OTHER STATES AND COUNTRIES DOING WITH REGARD TO MATERNITY/PATERNITY LEAVE AND WORK FAMILY BALANCE POLICIES

United States laws are presently less family friendly than those of 163 other countries which provide their citizens paid maternity leave, 45 countries which provide paid paternity leave and 37 countries which provide paid leave to parents whose children are ill. California is the only state in the union so far to require employers to provide paid maternity/paternity leave. Since 2004, California law provides most Californians with six weeks of partial pay—up to 55% --to bond with a new baby or foster or adopted child, or to care for a seriously ill child (or other covered family member).

Some examples of work family balance benefits offered in other countries are illustrative of some approaches that differ from what is presently required by law in the US.

• In Sweden, a couple can take 13 months of parental leave between them, receiving 80% of their wages. This leave can be taken immediately after a new child joins the family, or taken at any time until the child is 8 years old

• In England, parents can take 13 weeks of parental leave, at any time until the child is 5 years old.

• English parents can also take time off pursuant to the “Time Off For Dependents” law. This law allows employees to take “reasonable” time off if a dependant is ill or injured or if child care arrangements break down.

• Since 2003, English workers have a legally protected right to request flexible work options and employers have an obligation to seriously consider and grant such requests unless there is a legitimate business need to deny them. This law has apparently been working quite well. As of 2005, two thirds of UK employers had received at least one request and only 15 % had received more than five requests. Seven out of ten requests were fully accepted by the employer and one in ten were partially accepted. Nine out of ten employers reported no significant problems with the implementation of the new law, with only 13% of employers mentioning the cost of accommodating flexibility requests as a concern.

• In Denmark, almost all employees have the right to take paid leave on the first day of a child’s illness.

Employers have increasingly been voluntarily adopting work/family balance policies and procedures to accommodate the needs of their employees with childcare responsibilities. They report doing this for many reasons, including to attract and retain the best employees, to decrease employee turnover and retraining costs, and to increase employee loyalty and productivity. Here are some of the types of work/family balance policies that employers have adopted:

• Flex time, including allowing daily variation of work time other than in core hours when the employer’s staffing needs are the greatest

• Compressed work weeks (e.g. four ten hour days or four nine hour days plus one half day).

• Permitting employees to work from home, either full time or on certain days of the week, and either regularly or on occasions when a child is sick or childcare is unavailable

• Allowing employees to swap shifts

• Instituting an on line intranet system which allows employees to swap shifts, request a preferred schedule or request a temporary schedule change

• Job sharing, by which two part time employees share one job, usually splitting the pay and benefits according to how much time they work. Job sharers may split workdays, workweeks or work alternate weeks

• Allowing employees to take vacation by the day rather than requiring a minimum of one week be taken at a time

• Allowing a department’s or team’s employees to commit to jointly working a certain number of hours, or to completing a certain task within a certain amount of time. The employees then work out among themselves who works how many hours and when.

• Allowing employees to use their own sick time not only for their own illnesses and medical appointments but also for those of a family member

• Cross training employees so that they can perform more than one job, so that there are more trained employees available to cover employee emergency absences

• Using video conferencing for meetings and training

• Establishing a relationship with an employment agency so that temporary workers can be rapidly obtained to cover for employee emergency absences

• Compiling a group of per diem workers who can be called on short notice to cover for emergency employee absences

• Using retirees to cover employee absences

• Allowing full time workers to switch to a part time schedule while their children are young, and then allowing a return to a full time schedule when the children are older and need less care

• Allowing parents to transition back to full time work after a maternity/paternity leave, by granting a part time work schedule for a while

• Providing EAP type assistance to employees who experience work/family balance problems, such as an employee whose child is diagnosed with a serious illness or has a serious accident

• Granting employees days off when childcare arrangements break down or when a child is ill

• Allowing employees to designate the hours that they are available to work, rather than maintaining set schedules.

• Making efforts to change corporate culture to support work family balance, so that, for example being at one's desk for long hours is not the sine qua non of being viewed as a committed and promotable worker, and employees do not need to fear that they will be viewed as slackers if they use work/family benefits.

• Making a bargain with employees to allow time off for family needs in exchange for employees agreeing to work extra hours at times when the employer’s staffing needs are greatest

• Allowing unpaid leave on school holidays

• Agreeing with employees that they will work a certain number of days per year but allowing the employee some choice in when they work those hours

There are many resources available to employers who want to learn more about or to adopt work family balance policies . One such source is Corporate Voices for Working Families, a web site which contains a wealth of information on this topic. You can access this website at www.cvworkingfamilies.org.

THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.

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