Parental Leave in Massachusetts
What You Should Know About Parental Leave in MassachusettsIf you are planning to start a family, among the many things you are likely trying to figure out is how you can take leave from work to care for and bond with a newborn or a newly adopted child. Many employers offer paid maternity, paternity and adoption leave. If your employer does not offer paid leave, you may be eligible for partially paid leave through the Massachusetts Paid Family and Medical Leave Act ("PFMLA").
In either event, you should be aware of the protections you have under the law during your pregnancy and during and after your leave. Under new Massachusetts law, these protections extend even to smaller employers. If you are a public employee, the new law may not apply to you, but you still have protection under pre-existing parental leave law and the federal Family Medical Leave Act ("FMLA"). |
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Massachusetts Paid Family Leave
Prior to 2021, an employee's right to parental leave was governed by a separate statute that required employers with 6 or more employees to offer eight weeks of parental leave for the birth or adoption of a child. This leave was not required to be paid. If you worked for a company with 50 or more employees, and had been employed for a certain period of time, you were entitled to leave up to 12 weeks under the federal Family and Medical Leave Act ("FMLA"),
As of January 1, 2021, all employees and some independent contractors and self-employed individuals can take up to 12 weeks leave with partial pay under the PFMLA. Both parents can take this leave, but you cannot take both paid leave under Massachusetts law and additional unpaid leave under the federal FMLA.
While you are on PFML, your employer must continue to pay for any benefits that were provided before your leave (i.e., health and dental). The employer must also continue the accrual of vacation and sick time, and cannot penalize you in terms of seniority or advancement for taking leave.
When you return from leave, you are also protected from retaliation by your employer. The statute actually presumes that any negative action taken within six months of a protected leave is retaliatory. This means if you are terminated or demoted, or have your compensation changed, during this time period your employer will have to demonstrate by "clear and convincing evidence" that it had non-retaliatory reasons for its actions.
As of January 1, 2021, all employees and some independent contractors and self-employed individuals can take up to 12 weeks leave with partial pay under the PFMLA. Both parents can take this leave, but you cannot take both paid leave under Massachusetts law and additional unpaid leave under the federal FMLA.
While you are on PFML, your employer must continue to pay for any benefits that were provided before your leave (i.e., health and dental). The employer must also continue the accrual of vacation and sick time, and cannot penalize you in terms of seniority or advancement for taking leave.
When you return from leave, you are also protected from retaliation by your employer. The statute actually presumes that any negative action taken within six months of a protected leave is retaliatory. This means if you are terminated or demoted, or have your compensation changed, during this time period your employer will have to demonstrate by "clear and convincing evidence" that it had non-retaliatory reasons for its actions.
Preparing for Parental Leave
In most cases, you will have some ability to plan for your leave. If you are able to provide advance notice, the law requires that you give reasonable notice to your employer. "Reasonable notice" does not mean you need to notify your employer as soon as you know that you or your partner are pregnant, but as soon as you start to feel comfortable sharing the news outside of the family, it is a good idea to start the conversation with your employer.
There are times when this notice is not possible. If you have a high-risk pregnancy, for example, you may find yourself under medical orders to take leave earlier. A child may become available for adoption without much notice, or sooner than you anticipated. Under those circumstances, you just need to give notice as soon as you can.
Another reason to have the conversation with your employer on the early side is to find out if they have a short term disability policy that may cover some of your income during leave. You will want to discuss with the state Department of Family and Medical Leave how those benefits will or will not affect your state benefits enough ahead of time so that you can make your financial plan for your leave.
In most circumstances, your spouse or partner will have some leave available to them as well. An important question for you to discuss is whether you want to take leave together to allow both of you to bond with the child and share in the hectic first months of being a new parent, or stagger the leave to delay the need for child care.
There are times when this notice is not possible. If you have a high-risk pregnancy, for example, you may find yourself under medical orders to take leave earlier. A child may become available for adoption without much notice, or sooner than you anticipated. Under those circumstances, you just need to give notice as soon as you can.
Another reason to have the conversation with your employer on the early side is to find out if they have a short term disability policy that may cover some of your income during leave. You will want to discuss with the state Department of Family and Medical Leave how those benefits will or will not affect your state benefits enough ahead of time so that you can make your financial plan for your leave.
In most circumstances, your spouse or partner will have some leave available to them as well. An important question for you to discuss is whether you want to take leave together to allow both of you to bond with the child and share in the hectic first months of being a new parent, or stagger the leave to delay the need for child care.
Using Intermittent or Staggered Leave
If you are giving birth to a child, chances are you are going to want to take all or most of the available leave in one continuous block of time. You will need time to recover, and to navigate the joys of learning how to care for a newborn. If, however, you are the non-birthing parent, you may want to consider intermittent leave. The 12 weeks of available PFML do not have to be taken all at once, so a second parent can stretch the leave out for longer by taking a few days a week, or a week here and there.
The key thing to remember is that PFML leave can be taken all at once or intermittently, and is equally protected either way.
The key thing to remember is that PFML leave can be taken all at once or intermittently, and is equally protected either way.
Returning from Parental Leave
When you return from parental leave, you can expect some significant adjustments. Every child changes your life, whether it is the first or the seventh, born to you or your spouse/partner or adopted. It is a good idea to talk about your "re-entry" with your employer before and even during your leave, so that everyone is clear about what is expected.
You should know your rights upon return as well. If you are still nursing, Massachusetts law requires accommodations for lactating mothers, such as nursing rooms and private time. You also have a six month period upon your return during which the law will presume any termination or disciplinary action is retaliatory.
Some examples of things people have experienced that could be symptoms of retaliation for taking parental leave, short of outright termination, include:
You should know your rights upon return as well. If you are still nursing, Massachusetts law requires accommodations for lactating mothers, such as nursing rooms and private time. You also have a six month period upon your return during which the law will presume any termination or disciplinary action is retaliatory.
Some examples of things people have experienced that could be symptoms of retaliation for taking parental leave, short of outright termination, include:
- Favorable work assignments shifted to other employees and not reallocated to you when you return.
- Comments or formal performance evaluations that fault you for things you were not able to be involved with while on leave.
- Assumptions about your availability or commitment after your return.
- Finding yourself off-track for promotions that you would have been in line for prior to your leave.
How Our Employment Lawyers Can Help
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If you have questions about taking PFML, or think you have been the target of retaliatory conduction, we can help. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
