Q: I am pregnant. What are my rights under the maternity leave law?
A: The Massachusetts Maternity Leave Statute (MMLS) 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 MMLS 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 MMLS.
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 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 employee retains her 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 for 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 provides greater protection.
It should be noted, since the MMLS 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 MMLS be posted in all establishments where females are employed. If you have more questions about the MMLS first contact your employer’s human resource department then your attorney to resolve additional questions.