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Employers Must Provide Paternity Leave to Male Employees

Valerie Samuels February 26, 2015

On January 7, 2015, one day before he left office, former Massachusetts Governor Deval Patrick signed into law “An Act Relative to Parental Leave” (“MPLA”). The new law requires employers to provide fathers with the same rights as mothers to take time off due to the birth or adoption of a child. 

While paternity leave has been available to certain male employees since the Family and Medical Leave Act (“FMLA”) was enacted in 1993, FMLA only covers certain employers and employees. FMLA requires employers to provide up to twelve (12) weeks unpaid leave to eligible parents who wish to care for their newborn or newly adopted child.  FMLA only applies to businesses with more than fifty (50) employees and employees must have worked a minimum of 1,250 hours and been with the company for one full year to be eligible for FMLA leave. 

Prior to the enactment of MPLA, mothers who were not FMLA eligible, or whose companies were not large enough to be subject to FMLA, were entitled to eight (8) weeks of unpaid leave as a result of the birth or adoption of a child pursuant to the Massachusetts Maternity Leave Act (“MMLA”), General Law Chapter 149, Section 105D. By its terms, MMLA applied only to female employees.  However, since 2005, the Massachusetts Commission Against Discrimination (“MCAD”) has taken the position that employers must apply MMLA in a gender neutral fashion, which meant that even small employers (six or more employees) must provide unpaid paternity leave to male employees.  This created uncertainty for many Massachusetts employers:  whether to adhere to the strict terms of the MMLA, and provide leave to female employees only, or to grant both male and female employees time off for the birth or adoption of a child.

The uncertainty has been resolved with the passage of MPLA. Like MMLA, the MPLA applies to employers with six (6) or more employees.  Eligible employees must have completed their employer’s initial probationary period, not to exceed three (3) months, or been employed for at least three (3) consecutive months as a full-time employee (whichever is less).  Parental leave is unpaid; however, the employer may provide paid leave at its discretion.  Employees who take leave pursuant to MPLA must be restored to their previous or similar position with the same status, pay, length of service credit and seniority as of the date the leave began. 

Notably, the MPLA clarifies a controversial legal issue that arose in a 2010 case decided by the Supreme Judicial Court: Where an employer provides parental leave for more than eight (8) weeks, but does not intend to restore the employee to his or her same or similar job, the employer must provide written notice to the employee that job restoration is not guaranteed. 

Certain protections are incorporated in the statute, including the following:

  • If both parents work for the same employer they are entitled to a total of eight (8) weeks parental leave;
  • Employers are not required to restore an employee on leave if similarly-situated employees were laid-off due to economic conditions or other changes in operating conditions;
  • Employees must provide two (2) weeks’ notice before the date they intend to take leave unless that notice is impossible for reasons beyond the employee’s control, in which case the employee must provide notice as soon as practicable;
  • Employees must inform the employer of their intention to return to work after the leave; and
  • Employers are not required to cover the cost of any benefits, plans or programs during the leave unless the employer routinely provides such benefits to all employees who are on a leave of absence. For example, employers that contribute to benefits for employees on medical or personal leaves of absence must provide the same level of contribution to employees on parental leave.

Massachusetts employers who have at least fifty (50) employees within a seventy-five mile radius continue to be subject to FMLA. However, under FMLA, employers may require employees to exhaust all Paid Time Off (“PTO”) (sick and vacation time) during a parental leave.  Employers may not require employees to exhaust their PTO while on MPLA leave.  Moreover, MPLA and FMLA do not necessarily run concurrently.  For example, an employee may take up to twelve (12) weeks of FMLA leave prior to giving birth, and take an additional eight (8) weeks MPLA leave thereafter.  Also, an employee may take eight (8) weeks of MPLA leave and, if the employee has a FMLA qualifying event, such as the serious health condition of a spouse, child, parent, the employee may take up to four (4) additional weeks under FMLA.  This assumes the employer properly designated the first eight (8) weeks of leave as both MPLA and FMLA leave.

MPLA takes effect on April 7, 2015.  Massachusetts employers with six (6) or more employees must review their leave policies in order to ensure compliance with the new MPLA requirements as well as other recent changes in Massachusetts law, such as the mandatory sick leave requirement.  Employers must post a notice in a conspicuous location describing the new parental leave law and the employer’s policies concerning it.

If you have any questions or need additional information regarding this, please contact Valerie C. Samuels, or any other attorney in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2015 Posternak Blankstein & Lund LLP.  All rights reserved.

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