Measure of Interest

New Parental-leave Law Will Soon Impact Bay State Employers

By ROBERT ZYWNO, Esq.

The subject of parental leave has received a lot of attention in the media following President Obama’s recent focus on family issues in this year’s State of the Union speech. Indeed, the president has since directed federal agencies to grant their employees six weeks of paid parental leave and is pushing Congress to grant them six more.

Receiving less attention is the Bay State’s new law on parental leave, which goes into effect on April 7. Former Gov. Deval Patrick signed the law, called the Massachusetts Parental Leave Act (MPLA), on Jan. 7, in his final days as governor. The law replaces the Massachusetts Maternity Leave Act (MMLA), which currently only provides leave to expecting and adopting mothers, while the MPLA will extend eight weeks of unpaid leave to both men and women.

The new law makes several other notable changes to the MMLA as well.

Beyond extending leave rights to men, the MPLA also expands the purposes for which employees can take parental leave. Under the MMLA, employees are allowed eight weeks of unpaid leave for childbirth or for adopting a child under the age of 18 (or, alternatively, under the age of 23 if the child is physically or mentally disabled). In addition to these purposes, the MPLA will also allow employees eight weeks of unpaid parental leave if a child under the age of 18 (or, alternatively, under the age of 23 if the child is physically or mentally disabled) is placed with them pursuant to a court order. Accordingly, employers should update their policies to allow employees leave in such circumstances.

In extending parental-leave rights to men, the MPLA does provide an employer-friendly benefit. If an employer has two employees who are together expecting, adopting, or having a child placed with them pursuant to a court order, the MPLA only requires that the employees receive a total of eight weeks of leave between them both. Thus, the employer is not required to provide eight weeks of leave to each of the two employees.

Other changes under the MPLA are more employee-friendly. For instance, employers who require employees to complete an initial probationary period should be aware that, under the MPLA, employees are eligible for parental leave after completing just three months of their initial probationary period. This differs from the MMLA, which requires that employees successfully complete their entire initial probationary period. Otherwise, the MPLA will continue to allow employees with no initial probationary period leave after three months of employment.

The MPLA generally carries forward the same requirements for notice that employees are currently required to give under the MMLA. If an eligible employee intends to take parental leave, the employee must give the employer at least two weeks notice. However, the MPLA will allow employees some leniency in providing notice where the MMLA does not. If an employee cannot provide two weeks notice of parental leave for reasons beyond the employee’s control, the MPLA will allow the employee leave if he or she provides notice as soon as practicable.

The most substantial change in the MPLA requires an employer who grants an employee more than eight weeks of parental leave to return the employee to the same or similar position and benefits if the employee does, in fact, take more than eight weeks of leave. Under the MMLA, employees do not currently receive such job protection beyond eight weeks, even if the employer grants more than eight weeks of leave.

The MPLA, however, does provide a way for employers who wish to grant more than eight weeks of parental leave to do so while still limiting job protection to just eight weeks. To do so, the employer must, prior to the employee taking leave, provide written notice that the employee risks losing his or her position and benefits if the employee takes more than eight weeks of leave.

Notably, like under the MMLA, an employer will still not be required to return an employee back to the same or similar position, regardless of the amount of parental leave taken, if other employees in the business with equal length of service and status have been laid off due to economic or operating conditions. However, like under the MMLA, the employee retains preferential consideration for other positions the employee may have been entitled to as of the date of leave.

The MPLA also continues the MMLA’s requirement that employers post a notice in the workplace about parental-leave rights. However, where the MMLA only requires that employers post a copy of the law, the MPLA requires that the notice be conspicuous and describe the law as well as the employer’s policies on parental leave.

Employers should further take note that any violation of the MPLA will soon be a violation of M.G.L. c. 151B, the Massachusetts law prohibiting employer discrimination, retaliation, and harassment in the workplace. Accordingly, of the claims that employees and former employees may now bring against an employer through the Massachusetts Commission Against Discrimination, among them will soon be claims for failure to restore an employee to the same or similar position after taking protected parental leave, as well as for any other violation of the MPLA.

Like the MMLA, the MPLA generally applies to employers with six or more employees. Accordingly, Massachusetts businesses with six or more employees should consult with an attorney and review their leave policies to ensure compliance with MPLA requirements before they go into effect on April 7.

Robert Zywno is an attorney at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]