Maternity/Paternity Leave in Massachusetts

As written, Massachusetts General Laws Chapter 149, Section 105D (Massachusetts Maternity Leave Act), allows women to take eight weeks of unpaid maternity leave if certain requirements are met (e.g., non-probationary, full-time employee--See the text of Section 105D, below). The Act says nothing about men, and nobody is entitled to paid leave.

However, given that Massachusetts now recognizes same-sex marriages, the issue of whether men are entitled to unpaid leave appears to be very much unsettled at this point. In 2008, one of the Commissioners of the Massachusetts Commission Against Discrimination stated that the Act should be viewed as gender neutral and apply to men as well. The Commissioner, Martin Ebel, said that if the Act applied only to women, such an interpretation would raise constitutional concerns in light of the Massachusetts Supreme Judicial Court's decision that legalizes same-sex marriage. Commissioner Ebel also suggested that two other members of the Commissioners shared his view.

I am guessing that, even though the legislature has not yet re-written the Act, and no court has weighed in on the issue, in the very near future this issue will be resolved in favor of men being entitled to paternity leave (as long as they satisfy the requirement of Section 105D).  Also, Federal law is more clear on this issue.  If certain circumstances are met, male employees may be entitled to up to twelve weeks of unpaid leave under the federal Family and Medical Leave Act.  (Generally, the FMLA applies to companies with 60 or more employees, while the State Act applies to companies with 6-60 employees.) For more information or to post a question visit our MA Employment Law Discussion Forum.

Section 105D. A female employee who has completed the initial probationary period set by the terms of her employment or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee, who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth or for adopting a child under the age of eighteen or for adopting a child under the age of twenty-three if the child is mentally or physically disabled, said period to be hereinafter called maternity leave, and who shall give at least two weeks’ notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. Said maternity leave may be with or without pay at the discretion of the employer.

Such employer shall not be required to restore an employee on maternity leave to her previous or a similar position if other employees of equal length of service credit and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of such maternity leave; provided, however, that such employee on maternity leave shall retain any preferential consideration for another position to which she may be entitled as of the date of her leave.

Such maternity leave shall not affect the employee’s right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which she was eligible at the date of her leave, and any other advantages or rights of her employment incident to her employment position; provided, however, that such maternity leave shall not be included, when applicable, in the computation of such benefits, rights, and advantages; and provided, further, that the employer need not provide for the cost of any benefits, plans, or programs during the period of maternity leave unless such employer so provides for all employees on leave of absence. Nothing in this section shall be construed to affect any bargaining agreement or company policy which provides for greater or additional benefits than those required under this section.