Category Archives: MMLA

Pregnancy Leave in Massachusetts: Understanding the Maternity Act

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The Massachusetts Maternity Leave (MMLA) experienced a set back with the Supreme Judicial Court’s ruling in Global NAPs v. Awiszus. I had the opportunity to provide my thoughts about the decision to WBZ’s Diane Stern.

As background, the MMLA, which is codified under M.G.L. c. 149, §105D, guarantees “eligible” employees 8 weeks of unpaid leave for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. To learn more about the MMLA’s eligibility requirements and for a summary of the key differences between the MMLA and the Family & Medical Leave Act (FMLA), please visit our previous post, Medical Leave Eligibility and Handicap Status in the Workplace Explored.

In Stephens v. Global NAPs, Sandy Stephens worked for Global’s president as a housekeeper. In late 1999, she informed her supervisor of her pregnancy and that her last day of work before maternity leave would be July 14, 2000. Under the MMLA, Ms. Stephens was guaranteed 8 weeks of unpaid maternity leave. Her employer, however, promised her an additional 3 weeks of unpaid leave if she required a Cesarean section, which she did. Unfortunately, when Ms. Stephens tried to return after 11 weeks, Global reneged on its promise and informed her that she no longer had a job. Ms. Stephens brought suit under the MMLA and a jury found against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1,000,000.

The question before the SJC was whether Ms. Stephens could properly state a claim under the MMLA. According to the Massachusetts Commission Against Discrimination (MCAD), the Commonwealth’s chief civil rights agency charged with interpreting and enforcing the law in question, the answer is “yes.” In fact, the MCAD’s Maternity Leave Act Guidelines explicitly address this issue:

An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.

Although the SJC has previously acknowledged that such guidelines “represent the MCAD’s interpretation … and are entitled to substantial deference,” it abandoned the MCAD’s interpretation of the MMLA. Specifically, despite the employer’s promise that Ms. Stephens could take an extra 3 weeks off, the SJC held that she “was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks.” As the SJC noted, however, the employer’s broken promise may give rise to a claim “for breach of contract, breach of oral representations, detrimental reliance, or the like.” For reasons beyond the scope of this discussion, such claims may be more difficult for an employee to pursue.

In light of the Awiszus decision, employees are well-advised to understand their rights under the MMLA. As the SJC has made clear, relying solely on the word of an employer that promises more maternity leave than the MMLA contemplates may leave you unemployed.

Family Rights Discrimination Continues to be a Hot Button Issue

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Family rights discrimination (FRD) — discrimination against an employee who serves as a caregiver to a family member — continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies — even those recognized by Fortune as “Best Companies to Work For” — have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it’s a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it’s a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you’re getting. First, go to your boss and ask if there’s a problem with the quality of your work. If it doesn’t improve, bring all the examples to human resources. Discriminating against someone because they’re pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

Massachusetts Maternity Leave Act Applies to Men

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The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that “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” (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

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.

The MCAD’s long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman’s career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

Medical Leave Eligibility and Handicap Status in the Workplace Explored

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An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

Medical Leave Eligibility and Handicap Status in the Workplace Explored

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An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

As the article further points out, because this particular employee has been out of work for about 8 months, FMLA and MMLA leave have long run out. I agree that this is where Chapter 151B and the American with Disabilities Act (ADA) come into play. I also agree that an employer may be required to provide additional leave as a reasonable accommodation. I disagree, however, with the following analysis:

However, the fact that you were injured on the job may be significant because employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability.

The ADA and Chapter 151B may obligate an employer to provide additional leave as a reasonable accommodation only where the employee is deemed handicapped. To be considered handicapped, an employee must be substantially limited in a major life activity. The case law is generally clear that working constitutes a major life activity when the medical condition precludes the employee from a broad class of jobs. Thus, “employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability ” … where the injury substantially limits an employee in a major life activity.

Lastly, don’t forget that, under the ADA and Chapter 151B, employers have a duty to participate in what is called the “interactive process,” which requires a dialogue between the employer and employee with the objective of finding a means by which a disabled employee can perform the essential functions of a job in the employer’s workplace.