Articles Tagged with Parental Leave

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On June 28, 2018, Charlie Baker signed An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, part of a “grand bargain” between social justice advocates who pushed for paid family leave and a higher minimum wage and retail business representatives who urged a lower sales tax.

Family-LeaveWith passage of this law, Massachusetts is now the sixth state (plus Washington D.C.) to offer paid family and medical leave to employees. It will also outdo the U.S., which is currently the only country in the 41 Organization for Economic Cooperation and Development (OECD) and European Union nations that does not offer any paid family or medical leave.

In this post, I will focus on the family and medical leave portion of the new law, which will take effect in 2021, and the legal protections it will provide for Massachusetts employees.

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Massachusetts’ expanded parental leave law, An Act Relative to Parental Leave, goes into effect today.  The revised statute makes several significant changes to state law.  First, it removes any doubt about whether men are entitled to leave.  The amended law is gender neutral: men and women who work for employers with six or more employees are entitled to the same parental leave.  Employees who have completed an initial probationary period – as set by the employer, but not to exceed three months – are entitled to 8 weeks unpaid parental leave.  An employee who intends to take leave under the statute must provide 2 weeks’ notice of his or her anticipated departure date and intention to return, or provide such notice as soon as practicable if the reason for delay in providing notice is beyond the employee’s control.  An employee who takes leave under the statute must be reinstated to the same position or a similar position, meaning one that is comparable in terms of factors such as status and pay.

The second major change in the law clarifies when an employee is eligible for reinstatement.  While the state law mandates at least 8 weeks of unpaid leave, many employers offer benefits that exceed the minimum provided for under the state statute.  In 2010, the state’s highest court concluded that an employee who took more than the eight weeks leave provided for in the statute was not covered by the law’s reinstatement requirement.  The amended parental leave act clarifies that an employee is entitled to reinstatement unless the employer informs the employee – in writing, before the start of the employee’s leave and before any subsequent extension of that leave – that taking more than 8 weeks leave will result in denial of reinstatement or the loss of other rights and benefits.  In other words, the default is that employees are entitled to reinstatement and an employer who wishes to exclude an employee from this provision of the law must make its intention to do so clear.

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Just over 36 years ago, on October 31, 1978, the Pregnancy Discrimination Act (“PDA”) was signed into law, extending the protections of Title VII to pregnant women. This summer, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination, explaining how both the PDA/Title VII and the Americans with Disabilities Act provide protections for pregnant women in the workplace.

While much of the response to the EEOC’s new enforcement guidance has focused on the provisions that require employers to provide reasonable accommodations to pregnant women, another important aspect of the guidance – one that affects both men and women – has received substantially less attention. In the new guidance, the EEOC clarifies that under Title VII men and women are entitled to parental leave on an equal basis. To be precise, “similarly situated men and women” must receive parental leave “on the same terms.” What does this mean? It means that any leave provided to a new mother that extends beyond the “period of recuperation from childbirth” must also be provided to a new father.   In other words, any leave provided for the purpose of bonding with a child or providing care for a young child – as opposed to leave that is provided for the purpose of recuperating from childbirth – must be provided equally to men and women. Moms and dads get the opportunity to bond with and care for their babies.

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