The MCAD’s New Guidance on the Massachusetts Parental Leave Act Aims to Provide Clarity On Its Continued Role in Providing Important Leave Entitlements to Massachusetts Employees

The Massachusetts Commission Against Discrimination (the “MCAD”) recently issued updated guidance (here and here) on the Massachusetts Parental Leave Act (“MPLA”), signaling that the MPLA still plays an important role in the parental leave landscape in the Commonwealth.  Enacted in 2015, the MPLA provides eight weeks of unpaid, job-protected leave to parents upon the birth or adoption of a child, regardless of gender.  As most employers know too well, understanding the interplay among the various employee leaves laws in the Commonwealth can be challenging, and ensuring compliance under the MPLA became top of mind in 2018 when Massachusetts passed the Paid Family and Medical Leave Act (“PFML”), which provides job-protected leave and partial wage replacement to eligible employees upon the birth, adoption, or foster care placement of a child. The MCAD’s updated guidance, however, highlights the distinct benefits and protections offered under the MPLA. It is important that employers understand the obligations and limits of this law when offering parental leave to employees and in drafting their own parental leave policies. 

Protections and Benefits Under MPLA

As a refresh, the MPLA allows employees to take leave upon the birth of a child or the adoption of a child under the age of 18 (or under the age of 23, where the child has a mental or physical disability). This leave may be taken on a continuous, intermittent, or reduced schedule basis, within one year of the child’s birth or adoption.  Employees must give two weeks’ notice (if practicable) of the anticipated date of departure and intent to return, which notice the employer may require to be in writing. 

Should an employee exercise their right to parental leave under the MPLA, it must not affect their right to vacation time, sick time, bonuses, advancement, seniority, length of service credit, benefits, plans, or programs for which the employee was eligible as of the date of leave.  At the end of their leave, an employee must be restored to their same or a similar position. 

Interaction of MPLA and PFML

PFML, which is administered by the Department of Paid Family and Medical Leave, provides for partial wage replacement for a period of twelve weeks following the birth, adoption or foster care placement of a child.  Because of its partial wage replacement, PFML is often regarded as more beneficial to employees, as compared to the eight weeks of unpaid leave under the MPLA.  As compared to PFML, however, the MPLA offers a few distinct benefits to note: 

• First, the MPLA covers more types of employment than PFML. For example, commission-based employment with real estate brokers and insurance agencies are expressly excluded from PFML but are covered by the MPLA. 
• Second, an employee who exhausts their maximum entitlement to PFML for a reason other than the birth or adoption of a child (e.g., an employee takes twenty-six weeks of PFML leave in a benefit year to care for a family member injured serving in the armed forces), may still be entitled to take an additional eight weeks of unpaid but protected leave under the MPLA following the birth or adoption of a child. 
• Third, the MPLA, unlike PFML, does not impose a specific annually adjusted earnings requirement and thus provides protection to certain employees who are not entitled to PFML benefits.
• Finally, the MPLA is triggered each time an employee welcomes a new child into their family, such that an employee may be eligible for eight weeks of unpaid, job-protected leave at multiple times within the same year.  PFML provides only a maximum of twelve weeks in a single year for parental leave purposes, no matter how many childbirths, adoptions, or foster care placements the family has within the same year. 

Critically, for those employees who qualify for leave under both the MPLA and PFML, the benefits run concurrently, such that the employee would have 8 weeks of leave covered by both the MPLA and PFML, and a remaining four weeks of leave covered under only PFML. 

With its release of updated guidance, the MCAD has reminded employers that despite the PFML’s passage in 2018, employers still have obligations under the MPLA that they must satisfy and employees have additional leave entitlements that are separate and distinct.  Mintz’s Employment, Labor & Benefits team is ready to assist with any questions concerning the MPLA, PFML or the implementation of parental leave in the workplace more generally.  

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