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Massachusetts Employers Now Must Provide Paternity Leave To Men

Men are now entitled to paternity leave under the Massachusetts Maternity Leave Act (“MMLA”) to the same extent that women are entitled to maternity leave under this law, announced Martin B. Ebel, Commissioner of the Massachusetts Commission Against Discrimination (“MCAD”).  The MCAD’s new interpretation of the MMLA as covering men as well as women is effective immediately.  Thus, any man who satisfies the MMLA’s eligibility requirements but is denied paternity leave may file a charge against his employer with the MCAD.

The MCAD’s new interpretation of the MMLA contradicts the plain language of this law, which entitles any eligible “female employee” to “maternity leave.”  The decision to extend the MMLA to men also departs from the MCAD’s own MMLA guidelines, which have been in effect since 2000.  In those guidelines, the MCAD acknowledges that the MMLA “by its terms, provides maternity leave to female employees only.”  The guidelines also specify that the MCAD lacks “jurisdiction” over claims by male employees for paternity leave under the MMLA.  The MCAD promises to revise these guidelines, which still appear as originally drafted on its website.

The MCAD cites legislative and judicial developments as the reason for its changed approach to the MMLA.  Those developments are the 1984 and 1989 amendments expanding MMLA leave to adoptions and the Supreme Judicial Court’s 2004 decision legalizing same-sex marriage.  Commissioner Ebel explained as follows:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute.  That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

Under the MCAD’s new approach, it appears that a male employee qualifies for eight weeks of unpaid paternity leave under the MMLA if he works for an employer with six or more employees and:

  • Has completed the initial probationary period set by the terms of his employer 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;
  • Seeks paternity leave in connection with childbirth or the adoption of a child under the age of eighteen (or under the age of twenty-three if the child is mentally or physically disabled); and
  • Gives at least two weeks’ notice to his employer of his anticipated date of departure and intention to return.

An employer may not lawfully reduce or eliminate a male employee’s employment rights or benefits (e.g., vacation time, sick leave, bonuses) because he has taken paternity leave.  However, the employer may exclude the duration of the paternity leave from the calculation of such employment rights and benefits.  Similarly, the employer does not have to provide pay, benefits, or the cost of benefits to an employee on paternity leave unless the employer generally does so in connection with other leaves of absence.

When the paternity leave ends, the employer must restore the employee to his previous position, or a similar one, with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of his leave.  An exception may exist if similarly situated employees have been laid off during the paternity leave due to economic conditions or operational changes.  When this occurs, the employee retains any rights to preferential consideration for another position that he may have had when his leave began.

A violation of the MMLA constitutes a violation of the Massachusetts anti-discrimination law, known as “Chapter 151B.”  Thus, the remedies available to an employee who is denied rights under the MMLA are the same as those available to an employee who suffers employment discrimination under Chapter 151B.  The Massachusetts Appeals Court recently upheld an award of $100,000 in emotional distress damages under the MMLA because the employee was “shocked and humiliated,” suffered depression, and experienced nightmares when her MMLA rights were violated.

Massachusetts employers covered by the MMLA (meaning all Massachusetts employers with six or more employees) should immediately review and revise their employee handbooks, policies and practices to ensure compliance with the MCAD’s new interpretation of this law.  The MCAD announced this new interpretation without warning, has not signaled that employers will have a grace period to achieve compliance, and has already permitted at least one MCAD Charge alleging violation of paternity rights to go forward.   The Firm is available to assist with your policy review and, if necessary, litigation defense.