Massachusetts: Earned Sick Leave Statute Amended to Allow Employees Time Off for Certain Fertility and Other Reproduction-Related Issues

By Marylou Fabbo - Skoler Abbott P.C.

October 25, 2024

The Massachusetts Earned Sick Leave Act (“ESL”) was recently amended.  Effective November 21, 2024, employers must allow employees to take protected time off under the ESL to address an employee’s or the employee’s spouse’s physical or mental health needs related to pregnancy loss or a failed assisted reproduction, adoption, or surrogacy. In August, Governor Maura Healey signed An Act Promoting Access to Midwifery Care and Out-of-Hospital Birth Options (the “Act”).  In summary, the Act is intended to overhaul maternal health practices in Massachusetts and expand insurance coverage for midwifery, birth centers, doulas and screening and treatment for postpartum depression and has several other initiatives to save lives.  The amended ESL, which affords employees additional grounds upon which to take taking ESL, is part of that Act.   

Earned Sick Time

Employers with 11 or more employees must provide up to 40 hours per year of paid ESL. Employers with fewer than 11 employees also must provide ESL, but it does not need to be paid.  Currently, employees can use ESL if they are ill or injured or have a routine medical appointment. They also can use earned sick time for their child, spouse, parent, or spouse’s parent for the same purposes.  In addition, employees may use earned sick time to address certain domestic violence issues involving themselves or their children. You can read more about those reasons in a previous blog post found here.  Effective November 21, 2024, employees may use ESL to address an employee’s or the employee’s spouse’s physical or mental health needs related to pregnancy loss or a failed assisted reproduction, adoption, or surrogacy.  For more information about the ESL, see here.

Massachusetts Paid Family and Medical Leave Act (“PFML”)

Employers cannot look at ESL in a vacuum.  In addition to ESL, eligible employees may take protected time off under the PFML (and the federal Family and Medical Leave Act (“FMLA”))   for their own (or spouse’s) serious health condition.  Therefore, keep in mind that even when an employee has used all ESL available to the employee, they may still be eligible for PFML (and possibly FMLA) for a serious health condition, which could include mental or physical issues resulting from pregnancy loss, failed assisted reproduction, adoption or surrogacy.

Disability Accommodations

When employees use all of their ESL and PFML (and/or FMLA) employers cannot simply cut them loose if they need additional time due to their own mental or physical condition.  They must then engage in an interactive process with the employee to determine whether additional time off if needed would be a reasonable accommodation within the meaning of the Americans with Disabilities Act (“ADA”) or its Massachusetts counterpart, Chapter 151B, or whether it would pose an undue hardship on the employer.

Because employers must navigate several state and federal laws when it comes to providing employees with job-protected time off, they should contact experienced employment counsel for guidance if they are unclear on how to handle any particular situation.

www.skoler-abbott.com