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Maternity Leave Act

I. Introduction

The Massachusetts Commission Against Discrimination ("MCAD" or "commission") is issuing these guidelines to provide guidance to practitioners, employers, individuals and MCAD staff about how to interpret, apply and enforce the Massachusetts Maternity Leave Act ("MMLA"), M.G.L. c. 149, §105D. The MCAD is responsible for enforcing the MMLA. The standards governing employment practices with regard to maternity leave and related issues are part of the statutory and regulatory framework governing fair employment practices under Massachusetts General Laws Chapter 151B, Chapter 149, §105D, and Code of Massachusetts Regulations, tit. 804, §3.01 and §8.00. These guidelines are issued pursuant to M.G.L. c. 151B, § 2. [1]

II. Definitions

For the purposes of these Guidelines, the following definitions shall apply:

A. The term "employer" means one or more individuals, governments, government agencies, political subdivisions, labor organizations, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, or receivers, having six or more employees. The term "employer" does not include a club exclusively social, or a fraternal association or corporation, if such club, association or corporation is not organized for private profit. Nonprofit clubs, associations, or corporations which are not exclusively social are not excluded.

B. In determining whether an employee is treated as a "full time" employee the commission considers such factors as hours worked, days worked, benefits received, other leave entitlement, the employer's policies and other factors tending to show whether the employee is treated as a full time employee.

C. The term "maternity leave" means a period of time, not exceeding eight weeks, that a female employee is absent from employment for the purpose of giving birth or adopting a child and subsequently caring for that newborn or adopted child.

D. The phrase "pregnancy related disability" means a physical or mental impairment, associated with an individual's pregnancy, miscarriage, abortion, childbirth, or recovery therefrom, which substantially limits one or more major life activities. [2]

E. The definitions of the terms "disability," "impairment," "substantially limits" and "major life activities" can be found in the MCAD's "Guidelines: Employment Discrimination on the Basis of Handicap - Chapter 151B."

F. Absence for "the purpose of giving birth" as used in the MMLA refers to absence from work for the purpose of preparing for or participating in the birth or adoption of a child, and caring for a newborn or newly adopted child.

G. The term "similar position" is defined below in Section IV regarding job restoration after leave.

H. The term "initial probationary period" means a period of time, not exceeding six calendar months, set by an employer to establish initial suitability of an employee to perform a job notwithstanding the fact that the actual period required to attain tenure or other employment benefits may be longer.

III. Eligibility For Leave Under the MMLA

A female employee is eligible for maternity leave under the MMLA if:

A. She has completed the initial probationary period, if any, set by the terms of her employment; or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee; and

B. she is absent from such employment for a period not exceeding eight weeks for the purpose of:

  • giving birth; or
  • adopting a child under the age of 18; or
  • adopting a child under the age of 23, if the child is mentally or physically disabled; and

C. she gives her employer at least two weeks notice of her anticipated date of departure and intention to return.

If an employee meets these eligibility requirements, the employer must grant eight weeks of unpaid maternity leave under the MMLA. An employer cannot refuse to grant MMLA leave on the grounds that doing so would constitute a hardship.

The MMLA, by its terms, provides maternity leave to female employees only. This means that the MCAD is unable to take jurisdiction over claims in which male employees are seeking eight weeks of unpaid paternity leave. Providing maternity leave in excess of the eight weeks required by the MMLA to female employees only, and not to males, would in most circumstances constitute sex discrimination in violation of Chapter 151B.

An employer who provides leave to female employees only, and not to male employees, may also violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA. According to the EEOC, "[w]hen an employer does grant maternity leave, the employer may not deny paternity leave to a male employee for similar purposes, e.g., preparing for or participating in the birth of his child or caring for the newborn. Accommodating female but not male employees constitutes unlawful disparate treatment of males on the basis of sex." EEOC Compliance Manual, Section 626.6 on Paternity Leave.

The Massachusetts Supreme Judicial Court has not as of the date of these Guidelines considered whether the MMLA's requirement of leave for females only violates the Massachusetts Equal Rights Amendment, Article CVI of the Massachusetts Constitution. Given the possibility of a successful challenge to the constitutionality of the MMLA, employers should consider providing leave to all members of their workforce who otherwise meet the eligibility requirements of the MMLA.

IV. When Leave May be Taken, and the Type of Leave Taken

A. When Maternity Leave May be Taken

Maternity leave under the MMLA is available to a female employee either "for the purpose of giving birth" or to adopt a child. Thus, it is available at the time of the birth or adoption, but not substantially earlier or substantially later.

B. Paid or Unpaid Leave and Entitlement to Benefits

The MMLA does not require that leave be paid or that maternity leave be included in the computation of benefits, rights and advantages incident to employment, or that an employer pay for the costs of any benefits, plans or programs during the maternity leave. [3]

An employee may, however, be entitled to receive pay or benefits during her maternity leave pursuant to a collective bargaining agreement, company policy, employment contract or other agreement with the employer. In addition, if an employer generally provides pay, benefits or the costs of such benefits to employees on non-MMLA leaves of absence, the employer must provide the same such pay, benefits or costs to employees on MMLA leave. For example, if an employer generally provides pay to employees who are on extended sick leave, the employer must provide pay to employees on maternity leave.

C. Use of Accrued Vacation, Personal and Sick Time During Maternity Leave

If maternity leave is unpaid, the employee must be permitted to use, concurrently with the maternity leave, accrued paid sick, vacation or personal time under the following circumstances.

1. Vacation or Personal Time

An employee may voluntarily use any accrued vacation or personal time she has concurrently with all or part of her maternity leave. Employers cannot require an employee to use her accrued paid vacation or personal time concurrently with all or part of her maternity leave, even if such requirement is imposed upon similarly situated persons who take leave for other reasons.

2. Sick Leave

If an employer provides paid sick leave, an employee may use such sick leave concurrently with any part of her maternity leave that satisfies the employer's sick leave policy. An employer may not require an employee to use her accrued sick leave for any part of her maternity leave that satisfies the employer's sick leave policy, even if the employer requires its employees to use accrued sick leave for other types of absences that satisfy the employer's policy.

The MMLA does not in any way limit the right of an employee to use accrued vacation, sick leave or personal time before her statutory maternity leave begins, or after her leave ends, in accordance with her employer's policies and applicable law.

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