Massachusetts Commission Against Discrimination (MCAD) Finalizes Parental Leave Guidelines

By Amelia J. Holstrom - Skoler Abbott

August 3, 2023

Massachusetts significantly amended its Maternity Leave Act in 2015.  At that time, it became known as the Parental Leave Act.  The Parental Leave Act, among other things, expands coverage to men, requires that employers provide the leave to full-time employees after just three months of employment even if the employer’s introductory period is longer, and requires employers to post a notice regarding the leave.

In February of this year, the Massachusetts Commission Against Discrimination (MCAD) issued proposed Parental Leave Guidelines covering a number of important topics.  We wrote about those proposed Guidelines in a previous blog post. The MCAD accepted comments on the proposed Guidelines until March 24, 2023.  Now that the public comment period has ended, the MCAD has issued the finalized Guidelines, as well as a two-page “Brief Guide” to the law.  The Guidelines cover a number of topics, such as when leave may be taken, the type of leave that may be taken, use of accrued paid time off during leave, job restoration following parental leave, the interrelationship between parental leave and other leave laws, including the Massachusetts Paid Family and Medical Leave Act, and notice and posting requirements. While employers should carefully review the Guidelines, here are the highlights and what they might mean for your business:

Continuous, Intermittent or Reduced Schedule Leave

In the finalized Guidelines, the MCAD confirmed that employees may take parental leave in a continuous block of time, or on an intermittent or reduced schedule basis. An employee may only use parental leave on an intermittent or reduced schedule basis with the employer’s agreement.  However, the MCAD has proposed that employers may not “unreasonably deny” the intermittent or reduced schedule leave.  

Parental Leave runs concurrently with Paid Family and Medical Leave (PFML) and federal Family and Medical Leave Act (FMLA) leaves, when an employee also qualifies for those leaves.  Under both of those statutes, an employee may only take leave on an intermittent or reduced scheduled basis for bonding if the employer mutually agrees and employers can simply adopt a policy prohibiting it in general.  Some employers indicate in their PFML and FMLA policies that they do not permit employees to take leave on an intermittent or reduced schedule for bonding after birth.

The new Parental Leave Guidelines mean that whenever Parental Leave runs concurrently with PFML and/or FMLA, the employer must look at each request for intermittent or reduced schedule leave for bonding and that they cannot “unreasonably deny” the request.  The Guidelines do not provide any clarification on what a reasonable denial would include.  If that issue is ever in dispute, it will likely need to be decided by a court.  Employers would be prudent to discuss any request and potential denial with labor and employment counsel to ensure they are mindful of the risks associated with any decisions they may make.

Parental Leave Can Begin Before the Birth or Adoption and Up to One Year After The Birth

The MCAD did not make any changes to the proposed Guidelines when it comes to the timing of leave.  In the finalized Guidelines, the MCAD continues to indicate that parental leave is available “for the purpose of giving birth,” or “for the placement of a child for adoption with the employee” who “is adopting” or “is intending to adopt,” and, therefore, can be started before the birth or adoption and must be used within a “reasonable timeframe” after the birth or adoption.  The MCAD indicates that one year after the birth generally will be considered a reasonable timeframe to take parental leave.  Both the PFML and FMLA statutes already permit employees to take leave for bonding up to 12 months after the birth, adoption, or placement of a child.

Notice by Employees

The Guidelines reiterate that employers are required to give two weeks’ notice of their anticipated date of departure and intent to return, unless such notice is not possible due to circumstances beyond the employee’s control.  The anticipated date does not have to be exact and the notice of intent to return does not have to be explicit.  It is enough for an employee to indicate that they want to take 8 weeks of Parental Leave and provide an anticipated date of departure.

An employer may require written notice, but only if such a requirement is consistent with its customary notice and procedural requirements for other types of leaves. Employers who wish to do so should work with counsel to implement policies that are consistently applied to all employees regardless of the type of leave taken.

Exceptions Need to Be Made to Use-it-Or-Lose-It Vacation Policies  

Like the proposed Guidelines, the finalized Guidelines make clear that non-state employees who utilize parental leave are entitled to all of the vacation and sick time they had accrued prior to their leave, but did not use during their leave. Therefore, if an employer has a policy that employees lose all accrued unused vacation that they have not used by January 1st, but as of January 1st an employee has 15 hours of vacation time left because they were on parental leave beginning on December 15th, the employee is entitled to those 15 hours in their vacation time bank upon return from their 8 weeks of parental leave.

Parental Leave Time Not Included When Determining Certain Benefits  

The Guidelines make clear that employers are not required to count time taken as parental leave in the computation of various benefits, including but not limited to vacation, sick, bonuses, seniority, or length of service credits, “unless such time is included in computation of such benefits for employees” on other types of leave.  However, employees are entitled to whatever benefits they were eligible for at the time they began their leave.  In other words, if employee became eligible for a bonus three weeks before taking leave, the employee must be paid that bonus when they are paid out.

Can’t Force The Use Of Company-Provided Paid Time Off

As has always been the case, the Guidelines reiterate that employees cannot be required to utilize their available vacation or other non-sick leave paid time off during any unpaid parental leave. However, employers can require employees to use any time available to them pursuant to the Massachusetts Earned Sick Time statute.  There is a catch though.  The PFML statute prohibits employers from requiring employees to utilize company-provided sick pay.  Accordingly, whenever Parental Leave runs concurrently with PFML, the employer cannot require any employee to use their Earned Sick Time.

Multiple Births, Adoptions, or Placements

The Parental Leave statute provides 8 weeks of unpaid leave for each birth, adoption, or placement.  This is contrary to PFML and FMLA which allow a set amount of weeks of leave per benefit year and do not provide additional time for multiple births, adoptions, or placements made at the same time. Accordingly, there may be instances when an employee exhausts their PFML leave and has additional unpaid Parental Leave remaining, and employers will need to allow for that additional time off.

For example, if an employee gives birth to triplets, she is entitled to 24 weeks of Parental Leave.  However, if the employee’s PFML approval was for 4 weeks for recovery and 12 for bonding, the employee would only be paid under the PFML for the first 16 weeks of leave and the remaining 8 weeks would be unpaid under the Parental Leave statute, unless the employee chose to use any company-provided paid time off.

As another example, if an employee adopts one child in January and takes 12 weeks of PFML for bonding, which runs concurrently with 8 weeks of Parental Leave, and then the employee adopts another child in July, the employee is eligible for an additional 8 weeks of Parental Leave for the second adoption, but is not eligible for PFML.

Bottom Line

Now that the Guidelines are final, employers should review them carefully and make any necessary changes to existing policies and procedures. It would be prudent for employers to work closely with labor and employment counsel when doing so.

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