One of Governor Patrick’s final official acts was to sign into law, on January 7, 2015, the
Parental Leave Law (“PLL”), which replaces the Massachusetts Maternity Leave Law
In a nutshell, the new PLL makes the old MMLL gender-neutral by providing (unpaid)
parental leave to both males and females. Before the enactment of the new PLL, the
MMLL applied specifically and exclusively to female employees. This meant that
smaller employers who were not covered by the federal Family and Medical Leave Act
(“FMLA”), which applies to both males and females with respect to leave for the birth or
adoption of a child of the employee, were not required to offer parental leave to males.
However, in spite of the specific application to only females under the old MMLL, since
2008, the Massachusetts Commission Against Discrimination (“MCAD”) has taken the
contrary position in its guidance — that an employer’s failure to provide leave to a male
for the birth or adoption of a male employee’s child violates the Commonwealth of
Massachusetts’s anti-discrimination laws. The new PLL provides certainty; employers
must provide leave for the birth or adoption of an employee’s child to males and
Employees entitled to parental leave are those who:
- Work for employers with 6 or more employees; and
- Have completed their employer’s initial probationary period (which is not to
exceed three months) or have been employed by the same employer for at least 3
consecutive months (whichever is shorter); and
- Work full-time.
The leave remains at 8 weeks (although the MCAD has taken the position in its guidance
that the leave is 8 weeks per child).
If two employees are employed by the same employer, and otherwise qualify for parental
leave for the birth or adoption of the same child, they shall only be entitled to 8 weeks of leave in the aggregate. This means that they could divide the 8 weeks of leave between
them, as they see fit.
As under the old MMLL, the employer may not require the employee taking parental
leave to use his or her vacation time during parental leave, but the employee may choose
to do so. In addition, if the employer is covered under the FMLA, and an employee has
used up all of his or her FMLA leave (being 12 weeks) before the birth or adoption of the
employee’s child, the employee must be provided with 8 weeks of parental leave under
the PLL. However, if the employee did not take any FMLA leave, or took no more than 4
weeks of leave under the FMLA, his or her parental leave under the PLL will run
concurrently with his or her FMLA leave.
As before, employees must provide two weeks’ notice before the date they intend to
take leave; if two weeks’ notice is not possible for reasons beyond the employee’s
control, the employee must provide notice as soon as practicable; and employees must
indicate to the employer their intention to return to work at the end of their parental
leave. As under the old MMLL, the new PLL permits parental leave for “the purpose of
giving birth;” or placement of a child under the age of 18, or under the age of 23, if the
child is mentally or physically disabled, for adoption with the employee adopting or
intending to adopt, or for the placement with the employee of a child pursuant to a
As under the old MMLL, the employer must restore the employee who timely returns
from parental leave to his/her previous, or a similar, position with the same status, pay,
length of service credit and seniority as of the date of the leave.
Another change effected by the PLL concerns employers who permit employees greater
parental leave than the 8 weeks mandated. This change was the result of a case decided
under the old MMLL, where the employer did not provide restoration rights to a female
employee who took leave for longer than 8 weeks, with the employer’s permission. The
employer argued that the job protection benefits of the MMLL only lasted for 8 weeks.
The new PLL provides that if an employer offers longer than an 8 week parental leave,
the employer shall not deny the employee restoration rights under the PLL unless the
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 8 weeks of leave will result in the denial of reinstatement or loss of other rights