Frequently Asked Questions: Massachusetts Maternity Leave Act

By: the Massachusetts Commission Against Discrimination

XI. Questions and Answers Under the MMLA

Question 1: Employee develops a medical condition in the seventh month of her pregnancy. Her doctor hospitalizes her for three weeks until her condition stabilizes, and then she is able to return to work. Would her three-week leave come under the MMLA?
Answer 1: No. The three weeks would not count as MMLA leave because it is not "for the purpose of giving birth." Employee may be entitled, however, to this three weeks of leave under the employer's sick leave or disability policy, under the FMLA, or as reasonable accommodation if the condition constitutes a disability under Chapter 151B. Employee would still be entitled to eight weeks of maternity leave under the MMLA at the time her child is born.

Question 2: Employee schedules her maternity leave to begin before her expected due date. Does the period before the due date count as maternity leave under the MMLA?
Answer 2: Yes. Maternity leave may be taken "for the purpose of giving birth," which is defined as leave taken for the purpose of preparing for or participating in the birth or adoption of a child, and for caring for the newborn or newly adopted child.

Question 3: Employee has a knee operation in January. She takes 12 weeks of leave, which is designated by her employer as FMLA leave. Employee has a baby in June of that year, and requests an additional leave of absence as maternity leave. Employer denies her request for leave, on the grounds that she has used up her total family and/or medical leave entitlement for the year. Has Employer done anything wrong?
Answer 3: Yes. Employee is entitled to an additional eight weeks of leave under the MMLA. The first 12 weeks did not count as MMLA leave, since it was not for the purpose of giving birth or adopting a child.

Question 4: Employee has a baby in January. She takes 12 weeks of leave, which is designated by Employer as FMLA leave. At the expiration of the 12 weeks, she asks for an additional 8 weeks of maternity leave in connection with the same child. Does Employer have to grant her request?
Answer 4: No. Employer has already complied with the MMLA's requirement that Employee receive up to 8 weeks of leave for the purpose of giving birth to a child. In this instance, the MMLA leave runs concurrently with the FMLA leave.

Question 5: Employee has a child in January, and takes eight weeks of leave. In June, she adopts a second child. Is she entitled to eight more weeks of leave?
Answer 5: Yes. The MMLA allows eight weeks of leave each time Employee gives birth or adopts a child.

Question 6: Employee gives birth to twins. She demands 16 weeks of leave, on the grounds that she has given birth twice. Must Employer give her the 16 weeks?
Answer 6: Yes. An employee who gives birth to twins has given birth two times and is entitled to eight weeks of leave for each child.

Question 7: Employee adopts two babies at the same time. How many weeks of leave is she entitled to?
Answer 7: Sixteen weeks. The MCAD treats multiple adoptions the same as multiple births.

Question 8: Employee informs Employer that she is pregnant, that she expects to deliver the baby in June, and that she plans to return to work following her leave. The baby is delivered prematurely, in May. Is Employee entitled to take her maternity leave early?
Answer 8: Yes. The MMLA requires Employee to give two weeks' notice of her "anticipated date of departure and intention to return." Employee has satisfied this requirement; therefore, she is entitled to the leave.

Question 9: At the time her leave begins, Employee has five weeks of accrued vacation time. In the past, employees who have taken disability or sick leave have not been required to use their accrued vacation time concurrently with such leave. Employee informs Employer that she wishes to take a total of 13 weeks of leave, eight weeks of unpaid maternity leave followed by five weeks of paid vacation time. Is she entitled to the 13 weeks?
Answer 9: Yes. Employer must treat Employee consistently with how Employer has treated other employees on a leave of absence. In addition, Employer may not require Employee to use accrued sick or vacation time during her maternity leave.

Question 10: At the time her leave begins, Employee has five weeks of accrued vacation time. In the past, employees who have taken disability or sick leave have been required by Employer to use their accrued vacation time concurrently with such leave. Employee informs Employer that she wishes to take a total of 13 weeks of leave, eight weeks of unpaid maternity leave followed by five weeks of paid vacation time. Is she entitled to the 13 weeks?
Answer 10: Yes. Under the MMLA, Employer may not require Employee to use up her five weeks of accrued vacation time during her eight week MMLA leave, even though Employer has imposed a similar requirement with respect to other types of leave.

Question 11: Employer's maternity leave policy provides eight weeks of leave to female employees only. Does a male employee have a right to leave upon the birth or adoption of his child?
Answer 11: No. The MMLA, by its terms, provides eight weeks of maternity leave to female employees only. An employer who complies with the MMLA by providing eight weeks of maternity leave to female employees only does not violate a male employee's right under Chapter 151B to be free from sex discrimination. However, an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA.

Question 12: Employer's maternity leave policy provides sixteen weeks of leave to female employees only. Does a male employee have a right to leave upon the birth or adoption of his child?
Answer 12: Yes. Providing maternity leave in excess of the eight weeks required by the MMLA to female employees only, and not to males, would in most circumstances constitute sex discrimination in violation of Chapter 151B.

Question 13: Prior to her maternity leave, Employee received dental insurance through Employer, as did all other employees. During the leave, Employer eliminated dental insurance for all employees. Is the employee entitled to dental insurance upon her return from leave?
Answer 13: No, because Employee would have lost the dental insurance even if she had remained at work during her leave.

Question 14: Prior to her leave, Employee was a Vice-president. Upon return from her leave, she was transferred to a position with the same pay, but which was not considered an officer-level position, and which had a lower grade level. No other officer-level employees were similarly transferred. Has Employer complied with the MMLA?
Answer 14: No, because the new position does not have the same status as the prior position.

Question 15: Prior to her leave, Employee was a secretary, working the day shift, at a location 15 minutes from her home. Upon return from leave, she was reinstated as a clerk, working the night shift, but she was transferred to a location one and one-half hours from her home. No other employees were similarly transferred. Has the Employer complied with the MMLA?
Answer 15: No. The two positions are not "similar", because the duties, schedule and commute have changed significantly.

Question 16: While Employee is on leave, Employer decides to eliminate her position for operational reasons. Employer's decision is not in any way linked to Employee's pregnancy or need for maternity leave. Is Employee entitled to reinstatement?
Answer 16: No, because Employee's pregnancy, need for maternity leave and fact that she has taken MMLA leave was not a factor in the decision, and because Employee's position would have been eliminated even if she had remained at work.

Question 17: Employee requests maternity leave. Employer denies the leave, on the grounds that Employee's absence would cause undue hardship to the business. Has Employer complied with the MMLA?
Answer 17: No. If Employee meets the eligibility requirements for the MMLA, she is entitled to take maternity leave, even if granting leave would cause hardship to Employer.

Question 18: During a job interview, an applicant informs Employer that she is pregnant. Employer chooses not to hire her, on the grounds that Employer does not want to have to grant maternity leave. Has Employer done anything wrong?
Answer 18: Yes. Employer may not consider Employee's pregnancy, or potential need for leave, in hiring decisions since doing so would constitute gender discrimination under M.G.L. c. 151B.

Question 19: Employer's Collective Bargaining Agreement provides for six weeks of maternity leave only. Is Employee entitled to a full eight weeks of MMLA leave, even if granting such leave would violate the terms of the Collective Bargaining Agreement?
Answer 19: Yes. Employer may not avoid the requirements of the MMLA by a Collective Bargaining Agreement or other contract.

Question 20: Employer grants a bonus to all employees who have worked for one year. At the time her MMLA leave commences, Employee has worked 10 months. Must Employer grant her the bonus upon her return from leave?
Answer 20: No. Employer need not count the two months of maternity leave in computation of months of service for the purposes of the bonus. Employee may be eligible for the bonus, however, upon completion of two months of service following her return from leave, if similarly situated employees are also deemed eligible for the bonus.

Question 21: Employer's Handbook provides that employees are not eligible for any benefits prior to completing a six-month probationary period. Employee requests to begin maternity leave four months after the start of her employment. Is she entitled to the leave?
Answer 21: No. An employee is not eligible for maternity leave until she has completed the initial probationary period set by her employer which may be as long as six months.

Question 22: Employee who works 25 hours per week is considered a part-time employee under Employer's Handbook, and is not eligible for the benefits given to full-time employees. Is Employee eligible for MMLA leave?
Answer 22: No. Absent other factors tending to show full-time status, Employee would be considered a "part-time" employee, and therefore would not be eligible for MMLA leave. Employee may be entitled to leave under the FMLA, however, or if Employer provides leaves to part-time employees for other reasons.

Question 23: Employee adopts an adult of 21 years of age who has a mental disability. Is Employee entitled to MMLA leave?
Answer 23: Yes. The MMLA applies to adoption of a "child under the age of twenty three if the child is physically or mentally disabled" The MMLA applies to female employees only.

Question 24: Prior to her leave, Employee is eligible for participation in the Company 401K Plan. Upon return from her leave, Employer no longer permits her to participate in the Plan, on the grounds that there has been a break in her service. Has Employer violated the MMLA?
Answer 24: Yes. Maternity leave may not affect Employee's right to participate in programs for which Employee was eligible at the date of her leave.

Question 25: Employer's maternity leave policy provides ten weeks of maternity leave. Employee takes ten weeks of leave. May the Employer deny job restoration on the grounds that Employee has taken more than eight weeks of leave?
Answer 25: The MCAD takes the position that job restoration should not be denied unless the Employer clearly informs the employee in writing prior to the commencement of her leave that taking more than eight weeks of leave will result in the denial of reinstatement.