New law will require employers to provide paternity leave.

On April 7, 2015, most employees in the Commonwealth of Massachusetts will be eligible for eight weeks’ parental leave pursuant to the parental leave law (PLL), which will replace the Massachusetts Maternity Leave Act (MMLA). Like its predecessor, the PLL allows employees to take protected leave for the birth or adoption of a child under the age of 18 or under the age of 23 if the child is physically or mentally disabled. Also like its predecessor, the PLL requires employers to restore employees to their previous or similar positions once they return with the same status, pay, length of service credit, and seniority. This law is significant because it requires employers with six or more employees to provide gender-neutral parental leave. Although all Massachusetts employers should be aware of this change, those with fewer than 50 employees should take particular notice because their existing parental leave policies are more likely to be structured as “maternity” leaves applicable only to female employees.

Previous Landscape

As written, the MMLA required employers to provide only female employees with eight weeks’ protected leave for the birth or adoption of a child. Male employees were not protected. Employers with greater than 50 employees typically allowed male employees to take paternity leave under the Family and Medical Leave Act (FMLA). Other smaller employers also did so because the Massachusetts Commission Against Discrimination (MCAD) had long taken the position that employers should provide equal parental leave to male and female employees lest they risk a claim of gender discrimination. Nonetheless, although the MCAD’s position was viewed as persuasive, it did not carry the rule of law. As a result, many employers with fewer than 50 employees implemented “maternity” leave policies that provide eight weeks’ leave for only female employees. These policies will be illegal under the new law for employers with six or more employees.

Additional Changes

Another significant change under the PLL is its protection of leave beyond eight weeks in certain circumstances. Namely, employers that agree to provide employees with more than eight weeks’ parental leave must treat this leave as protected and subject to the law’s provisions. The only exception occurs when an employer clearly informs 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 eight weeks’ leave will result in the denial of reinstatement or loss of other rights and benefits. This is particularly significant for employers that need to coordinate with the FMLA. Other changes to the MMLA include the following:

• Coverage for employees who have a child placed with them pursuant to a court order

• Restriction of leave for two employees of the same employer (eight weeks total)

• Limitation to three months of the maximum probationary period prior to which employees become eligible

• A new provision that allows employees to provide notice “as soon as practicable if the delay is for reasons beyond the individual's control,” rather than the previous requirement of at least two weeks’ notice

What Does This Law Mean for You?

Employers with employees in Massachusetts should carefully review their employee handbooks and parental/maternity leave policies and amend them accordingly prior to April 7, 2015. Although FMLA-covered employers probably already permit paternity leave, they should note that the PLL (like the MMLA) will permit employees who have exhausted FMLA leave for reasons other than parental leave to take an additional eight weeks under the PLL.