Paid parental leave: the state of the US/Massachusetts v the world


The Washington Post recently had a story and some nice graphics comparing paid maternity leave laws across the world. It noted that the US "is the only advanced economy that does not mandate paid leave for mothers at the federal level."

What the US does have at the federal level is the Family and Medical Leave Act or FMLA. The purpose of the FMLA is to "allow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons . . . for the care of a child, spouse, or parent who has a serious health condition. . .” and to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 C.F.R. §825.101(a).

If an employee qualifies for FMLA leave, it provides 12 weeks of unpaid leave for the birth of, or placement or bonding with, a newborn or newly placed child. But it only applies in certain circumstances, such as where one has worked for an employer for 12 months, for example, and where the employer has 50 or more employees in a 75-mile radius. If one qualifies, at the the end of the leave, the employee is generally entitled to return to the same or an equivalent position, and the law prohibits an employer from interfering with an employee's exercise of his/her FMLA rights.

At the state level, the newly amended parental leave law (formerly known as the Massachusetts Maternity Leave Act) provides leave of up to 8 weeks to parents for the birth or placement of a child if the employee has completed his or her initial probationary period with the employer (or, if there is no probationary period, has completed three consecutive months of employment) and if he or she works for an employer with six or more employees. (Some exceptions apply.) It also does not have to be paid. At the close of leave, "[t]he employee shall be restored to the employee's previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of the leave." M.G.L. c. 149, s. 105D.

Since some amendments went into effect on April 7, 2015, the law also provides that if an employer agrees to provide parental leave for longer than 8 weeks, the employee's right to restoration under the act to a previous or similar position remains 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 shall result in the denial of reinstatement or the loss of other rights and benefits." In other words, if an employer agrees to provide 16 weeks of leave and fails to provide any notifications prior to the leave as well as before the 8-week extension goes into effect that the employee will not be reinstated at the close of the 16 weeks, it would violate the law not to reinstate the employee after the 16 weeks.

Lastly, the state Earned Sick Time Law may also be applicable as it can be used to care for oneself, spouse or child suffering from an illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care. Employees earn sick time at the rate of 1 hour per 30 hours worked, up to a maximum of 40 hours per year. Whether or not an employer must pay for the earned sick leave when used turns on the size of the employer. For employers with 11 or more employees, sick time must be paid. For employers with 1 to 10 employees, sick time may be unpaid. See here for Q&As on the Earned Sick Time Law.

In addition to what is provided explicitly by statute, some employers have their own leave policies. Those policies should be scrutinized so that all parties understand the rights and benefits that are provided.

Contact me for an employment law consultation if I can help with any of the above.

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