Human Resource Blog

FMLA in Massachusetts

A situation came up recently in my company (based in Boston, Massachusetts) where an employee used her FMLA benefit in full for a mental disorder earlier in the year (January - March). Soon thereafter, she became pregnant. She had the baby in December and was not eligible for FMLA benefits until January (since it had not been 12 months yet since she had last used the 90 day FMLA benefit). In January, is she now eligible to take another 12 weeks (on top of the 4 weeks in December?) since it’s been a full 12 months since she used the FMLA benefit or can we as a company say she can only take 12 weeks total for maternity leave? How does this work?

Yes, this employee is probably entitled to another 12 weeks of FMLA for baby bonding or any other reason valid under FMLA. This answer would be different in any state except Massachusetts.

Under the Massachusetts Maternity Leave Act or MMLA, an employer must give a full-time female worker up to 8 weeks of unpaid, job-protected maternity leave after the birth or adoption of a child. The MMLA applies as long as the worker has been with the employer for at least 3 months, (or has successfully completed any probationary period), and provides the employer with two weeks notice of leave.

In most cases the 12 weeks of FMLA and the 8 weeks of MMLA run concurrently. However, in some cases Massachusetts employees who have already exhausted their FMLA leave for another reason are still entitled to 8 additional weeks of leave under FMLA. The Massachusetts MMLA specifically addresses this issue. We quote from the Massachusetts Commission Against Discrimination Website: The FMLA provides that nothing in the law supersedes any provision of state law that provides greater family or medical leave rights. Thus, for example, if an employee takes 12 weeks of FMLA leave for a purpose other than birth or adoption of a child, she will still have the right to take eight weeks of maternity leave under the MMLA.

FMLA leave must be specifically designated as FMLA at the beginning of the leave, in writing. Preferably, the employee should sign a document at the beginning of leave that specifies it as FMLA leave. Your question suggests that the employee did not sign any such document in December. (Even if she had, it is not clear that this would change her entitlement to FMLA now. Giving an employee more than 12 weeks of FMLA leave in one year, does not eliminate the need for the employer to grant the full 12 weeks of FMLA the next year under federal law.)

Assuming that the employee has worked at least 1,250 hours in the past 12 months, the employee is most likely entitled to FMLA again. Baby bonding leave can be taken at any time during the childs first year of life, under FMLA. The employee, not the employer, gets to choose when to take it. However, employers are under no obligation to permit intermittant leave for baby bonding, unless they and the employee mutually agree to it.

When is the employee eligible for FMLA leave? That will depend upon how the employer tabulates FMLA leave. There are 4 acceptable methods of calculating FMLA leave. (For a more detailed explaination, search our archives or post another question.) FMLA may be calculated by A) the calendar year or another arbitrary date B) the employees annivarsary date C) forward from the first day FMLA was used by this employee or D) backwards from the first day of the current FMLA absence.

Most employers use method C to calculate FMLA leave, and it sounds like that is the method you have been using. Under that method, as far as we can tell, as long as the employee has worked at least 1,250 hours in the past 12 months, she is eligible for another 12 weeks of unpaid FMLA, for any qualifying reason including baby bonding. Using this method, if the employee began 12 weeks of FMLA leave on January 15 last year, she would qualify for another 12 weeks of FMLA leave beginning on January 15 this year.

We agree that this is a lot of leave. If this employee takes another 12 weeks of FMLA, she will have worked just 8 months in the past 15 months. Because this is so much leave, you may want to check with the U.S. Department of Labor at www.dol.gov regarding additional FMLA. But we believe that you will be required to grant additional unpaid leave to this employee.

Read more about the MMLA at: http://www.mass.gov/mcad/maternity1.html#3

Read more about FMLA at:
http://www.dol.gov/esa/whd/regs/compliance/1421.htm

Note to other employers: Under federal and state sex discrimination laws, employers may be required to grant the same leave to male employees after the birth or adoption of a child as to female employees under MMLA.