Massachusetts Commission Against Discrimination Issues Proposed Parental Leave Guidelines
By Amelia J. Holstrom - Skoler Abbott
March 20, 2023
Massachusetts significantly amended its Maternity Leave Act in 2015. At that time, it became known as the Parental Leave Act. The Parental Leave Act, among other things, expands coverage to men, requires that employers provide the leave to full-time employees after just three months of employment even if the employer’s introductory period is longer, and requires employers to post a notice regarding the leave. We wrote about these and other changes in an earlier blog that can be read here. At the time, the Massachusetts Commission Against Discrimination (MCAD) issued a one-page fact sheet regarding the new law and attached the old Maternity Leave Guidelines that had not been updated. Similarly, the regulations remained unchanged, leaving employers with some unanswered questions. Employers may soon get some answers to those questions from the MCAD.
On February 2, 2023, the MCAD issued proposed, “Guidelines on the Massachusetts Parental Leave Act.” The 32-page proposed guidelines cover a number of topics, such as when leave may be taken, the type of leave that may be taken, use of accrued paid time off during leave, job restoration following parental leave, the interrelationship between parental leave and other leave laws including the Massachusetts Paid Family and Medical Leave Act, and notice and posting requirements. Here are the highlights:
• Continuous, Intermittent or Reduced Schedule Leave: Employees may take parental leave in a continuous block of time, or on an intermittent or reduced schedule basis. An employee may only use parental leave on an intermittent or reduced schedule basis with the employer’s agreement. However, the MCAD has proposed that employers may not “unreasonably deny” the intermittent or reduced schedule leave.
• Parental Leave Can Begin Before the Birth or Adoption and Up to One Year After The Birth: Parental leave is available “for the purpose of giving birth,” or “for the placement of a child for adoption with the employee” who “is adopting” or “is intending to adopt,” and, therefore, can be started before the birth or adoption and must be used within a “reasonable timeframe” after the birth or adoption. The MCAD indicates that one year after the birth generally will be considered a reasonable timeframe to take parental leave.
• Exceptions May Need to Be Made to Use-it-Or-Lose-It Vacation Policies: When they return to work, non-state employees who utilize parental leave are entitled to all of the vacation and sick time they had accrued prior to their leave, but did not use during their leave. Therefore, if an employer has a policy that employees lose all accrued unused vacation that they have not used by January 1st, but as of January 1st an employee has 15 hours of vacation time left because they were on parental leave beginning on December 15th, the employee is entitled to those 15 hours in their vacation time bank upon return from their 8 weeks of parental leave.
• Parental Leave Time Not Included When Determining Certain Benefits: Employers are not required to count time taken as parental leave in the computation of various benefits, including but not limited to vacation, sick, bonuses, seniority, or length of service credits, “unless such time is included in computation of such benefits for employees” on other types of leave.
• Can’t Force The Use Of Company-Provided Paid Time Off: Employees may not be required to utilize their available vacation or other non-sick leave paid time off during any unpaid parental leave. However, employers can require employees to use any time available to them pursuant to the Massachusetts Earned Sick Time statute.
• Restoration Rights: Upon the conclusion of parental leave, employees are entitled to be returned to the same, or a similar position, which must have the same status, pay, length of service credit, and seniority as the position held prior to the leave. If the pregnancy resulted in a temporary change in the employee’s duties, the employee must be restored to the same or similar position held before the temporary change. Also, to determine whether the position is the same or similar, the MCAD will considered a multitude of factors, including but not limited to: title, responsibilities, reporting relationships, salary, wages, bonuses, vacation and other benefits, location, resources and support, hours of work, schedule, availability of remote work, and advancement opportunities.
• Some Leaves Can Run Concurrently: Parental leave runs concurrently with Massachusetts Paid Family and Medical Leave and federal Family and Medical Leave Act leave when an employee is also eligible for those leaves. The MCAD highlights that there may be instances when someone utilizes all of their Paid Family and Medical Leave and/or Family and Medical Leave Act leave for a reason other than birth or adoption, in which case the person would still be entitled to 8 weeks of unpaid parental leave for the purpose of giving birth/adopting. For example, if an employee utilizes 26 weeks of Paid Family and Medical Leave for their own serious health condition and the serious health condition of another in the 6 months leading up to the birth, the employee will still be eligible to take 8 weeks of unpaid parental leave for the purpose of giving birth.
• 8 Weeks Per Birth: Unlike Paid Family and Medical Leave which only provides 12 weeks for the purposes of bonding after a birth or adoption, regardless of the number of children birthed or adopted, the Parental Leave Act provides 8 weeks of leave for “each birth” or adopted child. Accordingly, if an employee has twins, they are entitled to 16 weeks of parental leave, and in the case of triplets, the employee is entitled to 24 weeks of parental leave.
• Non-discrimination: Parental leave policies must provide leave on an equal basis regardless of sex, gender identity, sexual orientation, or any other protected class under Massachusetts law. For example, employees may not provide 8 weeks of parental leave to new fathers and 12 weeks to new mothers, as that would constitute sex discrimination.
You have the right to give feedback on this guidance. The proposed guidance is just that: proposed. The MCAD is accepting public comment on the proposed guidelines until March 24, 2023. You may submit a comment via email to MCADguidelinescomment@mass.gov or via mail to the Clerk of the Commission at Massachusetts Commission Against Discrimination. The MCAD may, or may not, revise the guidelines based on the feedback it receives. Thereafter, the MCAD will issue the guidelines in their final form.
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