The Law @ Work

Does the PWFA Create an Immediate Entitlement to Maternity Leave?

by Kimberly A. Klimczuk

Massachusetts has its own parental leave law, which requires employers with six or more employees to provide eight weeks of unpaid leave for the birth or adoption of a child.  In order to be eligible for parental leave, an employee must have completed their employer’s probationary/introductory period or, if there is no probationary period, have worked for the employer for at least three consecutive months as a full-time employee.  Although this may seem pretty straightforward, there are circumstances in which an employer may be required to provide parental leave to employees who are not yet eligible for leave under the parental leave law.

On April 1, 2018, Massachusetts’ Pregnant Workers Fairness Act (PWFA) took effect.  That law added protections for pregnant workers and also requires employers to provide reasonable accommodations for an employee’s pregnancy or pregnancy-related condition.  The Massachusetts Commission Against Discrimination (MCAD), which enforces the PWFA, has made clear in its Q&A on the Pregnant Workers Fairness Act that time off from work is a form of reasonable accommodation.  Therefore, an employee who needs time off to recover from childbirth may be entitled to leave as a reasonable accommodation even if she is not eligible for parental leave under the Parental Leave Act (PLA).  Employers do not have to provide time off if they can show doing so would create an undue hardship; i.e., that providing the leave would require significant difficulty or expense.  However, in many cases it will be very difficult, if not impossible, for an employer to demonstrate that any amount of time off would be an undue hardship, and undue hardship would only be a consideration for employees who are not yet eligible for parental leave.

Because the PWFA only applies to pregnancy or pregnancy-related conditions, this immediate leave would not be available for purposes of adopting a child or for bonding with a new child.  Although some have expressed concern that the PWFA therefore provides an opportunity for immediate leave for mothers and not fathers, this does not create a discrimination concern for employers, because the eligibility leave is based on medical need rather than on caring for/bonding with a new child.

Employers who receive a request for time off related to childbirth need to consider their obligations under both the PWFA and the PLA and should consult with legal counsel if they have any concerns about the application of those laws to any particular situation.

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