The Massachusetts Parental Leave Act (“PLA”) recently expanded to provide parental leave rights to all employees regardless of gender. The PLA takes effect April 7, 2015, and requires employers with six or more employees to provide a minimum of eight weeks of job protected leave to employees for: (1) the birth of a child; (2) the adoption of a child under 18 or under 23 if the child has a mental or physical disability, and (3) the court ordered placement of a child with an employee. If both parents work for the same employer, they are entitled to eight weeks between them. Employers can still decide whether or not leave is paid or unpaid. Employers should be aware of several important issues relating to leave generally, leave approved beyond eight weeks, and the interaction between the PLA and FMLA. Employers that discriminate or retaliate against an employee exercising PLA rights may be subject to liability under the Massachusetts Fair Employment Practices statute.
General Leave Information
Employees who have been with an employer on a full-time basis for at least three months are entitled to leave. Employers should be aware that if they have in place a probationary period of less than three months, the employee will become eligible after that period. Employees are required to provide at least two weeks’ notice of the anticipated departure date and their intention to return to work but may give notice “as soon as practicable” if unable to do so for reasons beyond their control. Employers must post notice in a conspicuous place describing the PLA and their policies relating to leave.
Employers must allow the employee to return to their previous or a similar position with the same status, pay, length of service credit, and seniority. Employers will not be required to restore an employee on leave if other employees of equal length of service credit and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions affecting employment during the parental leave; provided that the employee on parental leave shall retain any preferential consideration for another position to which the employee may been entitled as of the date of the leave.
Leave Approved Beyond Eight Weeks
Employers with a policy allowing leave longer than eight weeks cannot deny reinstatement after the conclusion of leave unless they clearly inform the employee in writing “prior to the commencement of the parental leave, and prior to any subsequent extension of that leave, that taking longer than 8 weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.”
Employees Eligible for Both FMLA and PLA Leave
Employees eligible for FMLA leave are entitled to twelve weeks of unpaid leave. The eight weeks required by the PLA and twelve weeks mandated for FMLA eligible employees may run concurrently. However, in situations where an employee takes FMLA leave for serious health conditions, the PLA allows for eight weeks in addition for a total of twenty weeks. FMLA rules regarding the use of accrued paid time off control if PLA and FMLA leave are taken concurrently. Employers in this circumstance can require employees to use their available vacation and paid time off while on paid leave.
If you have any questions about any of the issues discussed in this alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.