New guidance on Massachusetts Parental Leave Act

The 2015 Massachusetts Parental Leave Act (MPLA) was a significant change for parental leave requirements in the state. Most notably, the Act expanded coverage to men, providing eight weeks of unpaid, job-protected leave to parents upon the birth or adoption of a child, regardless of gender.

The Massachusetts Commission Against Discrimination (MCAD) has issued new guidelines, clarifying current application of the MPLA. The guidelines cover a number of issues, including eligibility, types of leave, when leave may be taken, and other employee benefits and entitlements.

Employers should ensure that they are in compliance with the guidance. Here are some key elements:

• Types of leave: Leave may be taken all at once or intermittently, as needed. An employee needs employer approval to take intermittent or reduced schedule leave; however, employers are advised that they cannot “unreasonably deny” such a request.
• Timing: Leave can start before a birth or adoption or within a “reasonable” time period after such as event. The MCAD indicates that one year after a birth will generally be considered reasonable.
• Notice: Employees must provide their employer with at least two weeks’ notice of the anticipated date of departure and intent to return, or as soon as practicable, if a delay is beyond the individual’s control.
• Two parents, same employer: If both parents work for the same employer, they shall only be entitled to eight weeks of leave in the aggregate for the birth or adoption of the same child.
• Benefits: An employer does not need to count parental leave time when determining certain benefits such as vacation, sick leave, bonuses, or seniority — unless such time is included for employees on other types of leave. However, the employee must retain any accrued benefits, seniority calculations, etc. to which they were entitled at the time of the leave.

Note that when the employer has a “use it or lose it” policy for paid time off, parental leave would not extend their expiration date. For example, if the employee has 15 hours of sick leave remaining before they go out on parental leave in December, those 15 hours would expire at year end, just as they would for any other employee.

• Multiple births: The MPLA provides eight weeks of unpaid leave for each birth, adoption, or placement. This is a variation from the Massachusetts Paid Family and Medical Leave (PFML) law as well as the federal Family Medical Leave Act (FMLA). In other words, if a parent has twins, they are entitled to 16 weeks unpaid leave; if they had triplets, they’d be entitled to 24 weeks leave. The same rule would apply for multiple adoptions within a calendar year.
• Other distinctions from PFML: Employers should note that the PFML, which offers partial wage replacement to employees, does not make the MPLA irrelevant. In addition to the above differentiations for multiple births, the MPLA covers more employees (e.g., commission-based employees) and does not impose an annual earnings requirement. Further, an employee who exhausts their PFML benefit for family caregiving reasons other than birth/adoption may still be entitled to take an additional 8 weeks of unpaid leave under the MPLA. Employers should review their obligations under the MPLA and understand how it interacts with the PFML.