The Massachusetts Maternity Leave Act (MMLA) allows maternity leave for a female employee, who has completed a probationary period set by the terms of the employment (not to exceed six months), or who has completed three consecutive months of full time employment where there is no prescribed probationary period. Such leave however cannot exceed eight weeks and must be for the purpose of giving birth, or for adopting a child under the age of eighteen or for adopting a child under the age of twenty-three if the child is mentally or physically disabled.
In the case of most female employees of larger companies (50 or more employees), the more generous twelve-week Family Medical Leave Act (FMLA) benefit, and not the eight-week MMLA benefit applies. FMLA leave is to run concurrently with any leave taken under state law. Thus, an employee is not entitled to take twelve weeks of leave under FMLA and then eight weeks of leave under the MMLA, although there are some exceptions.
Additionally, the employee must give at least two weeks’ notice to her employer of her anticipated date of departure and intention to return. When the employee returns to work, she will be restored to her previous, or a similar position with the same status, pay, length of service and seniority as of the date of her leave.
Maternity leave does not have to be paid for by the employer, however if the employer provides paid leaves for other short-term disabilities, paid pregnancy leaves must also be provided. 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 for 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. However, an employer who provides leave for female employees only, and not to male employees, may violate the prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA. The Massachusetts Supreme Judicial Court has not as of this date considered whether the MMLA’s requirement of leave for females only violates the Massachusetts Equal Rights Amendment.
An employer is not required to restore an employee on maternity leave to her previous or similar position if other employees of equal length of service and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions which occur during the period of maternity leave; however, such employees retain their preferential consideration for other positions to which she may be entitled as of the date of leave.
Generally, maternity leave will not affect an employee’s right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which she was eligible at her date of leave, and any other advantages or rights of employment incident to her position. The maternity leave itself will not be included in the computation of the above benefits nor does the employer have to provide for the cost of any benefits, plans, or programs during the maternity leave unless the employer provides for all employees on leave of absence. This provision, however, provides less protection to workers than the FMLA, which requires leave periods to be treated as continued service for purposes of vesting and retirement plan eligibility. In situations where both statutes apply, the FMLA generally provides greater protection.
If maternity leave is unpaid, the employee must be permitted to use, concurrently with the maternity leave, accrued paid sick, vacation or personal time, however the employer cannot require an employee to use such accrued vacation, sick or personal time during the maternity leave.
An employer may not deny a woman the right to work or restrict her job functions, such as heavy lifting or travel, during or after pregnancy or childbirth when the employee is physically able to perform the necessary functions of her job. The mere fact of pregnancy, does not automatically establish a disqualifying disability.
Normal pregnancy and related short-term medical conditions may, at some point, incapacitate a woman from performing her usual work for a short period of time. In some circumstances these short-term conditions may rise to the level of a disability under Chapter 151B. Whether or not an employee’s short-term condition rises to the level of a disability, an employer must treat such employee in the same manner as it treats employees who are temporarily incapacitated or disabled for other medical reasons. When an employee is unable to perform some or all of the functions of her job, such as heavy lifting, because of pregnancy or a related condition, an employer must offer her the opportunity to perform modified tasks, alternative assignments or a transfer to another available position if the employer offers such opportunities to employees who are temporarily disabled for other reasons.
It should be noted that since the MMLA is enforceable solely through the Massachusetts Commission Against Discrimination, an aggrieved individual only has six months to file a claim.
The law requires that a notice of the MMLA be posted in all establishments where females are employed. If you have more questions about the MMLA first contact your employer’s human resource department then your attorney to resolve additional questions.