Management company and condominium association employers struggle with countless issues that arise when employees are absent for health-related reasons. The struggle is due to multiple legal obligations that may apply, including the Family Medical Leave Act (“FMLA”), the Massachusetts Maternity Leave Act (“MMLA”), Small Necessities Leave Act (“SNLA”) the Americans with Disabilities Act (“ADA), the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), and the Workers Compensation Statute. For the purpose of this article, I will attempt to tackle employee leaves of absence in connection with the FMLA and MMLA, and will address the other above identified types of leaves of absence in a separate article to be published later this year.

Applicable Law
Employers are obligated to provide their employees with voluntary leave due to a serious health condition (either their own or that of a family member), pregnancy, childbirth, pregnancy-related illnesses, and parenting under the FMLA and the MMLA.

Leave under the FMLA may be paid or unpaid depending on the employer’s policies; however, the statute does not require that leave be paid.

FMLA
Employers are obligated to provide their employees with voluntary leave due to a serious health condition (either their own or that of a family member), pregnancy, childbirth, pregnancy-related illnesses, and parenting under the FMLA and the MMLA.

The FMLA is gender neutral and requires employers with fifty (50) or more employees to provide up to twelve weeks of unpaid leave to eligible employees at the birth of a child or newly adopted child, for the employees for their own or their family members’ serious medical conditions, and to deal with certain necessities that occur when a spouse, child or parent is on active military duty. Pregnancy and related medical conditions that cause an employee to be unable to work are specifically included within the definition of a “serious health condition.”

An employee has a total of twelve weeks of FMLA leave available in a given twelve-month period. For example, if a female employee uses three weeks of leave earlier in the year for another FMLA purpose (such as a serious health condition), then she is only entitled to the balance of nine weeks of FMLA leave at the birth of her child. Further, leave to care for a newborn child must be taken within twelve months of the birth of the child.

It is important to note that leave under the FMLA can be taken all at once or on an intermittent or reduced basis. If an employee wants to take intermittent or reduced leave to care for a newborn, they may do so only with their employer’s approval. However, the employee may take leave on a reduced or intermittent basis without the employer’s approval if “medically necessary.” The employer may require the employee’s health care provider to certify the medical necessity of such intermittent or reduced leave.

Leave under the FMLA may be paid or unpaid depending on the employer’s policies; however, the statute does not require that leave be paid. Again, depending on the employer’s policies governing the use of leave, an employee may request, or an employer may require, that the employee use paid leave, such as sick leave or vacation, during the period of FMLA leave. The employer must continue to provide health insurance on the same basis as before the leave began. At the end of the FMLA leave, the employee must be restored to the same position or to an equivalent position with equal benefits, pay and other terms and conditions of employment.

An employer who violates the FMLA could be subject to suit and damages consisting of a requirement that the employer comply with the law and/or reinstate the employee. Money damages are also available to a successful plaintiff, including without limitation, lost back pay, lost front pay, emotional distress and punitive damages. A successful plaintiff shall also be entitled to an award of reasonable attorney’s fees incurred by the plaintiff in prosecuting the case.

MMLA
Prior to April 7, 2015, the MMLA provided eight weeks of unpaid leave to only eligible female employees “for the purposes of giving birth.” On April 7, 2015 An Act Relative to Parental Leave (the “Act”) expanded the MMLA. Currently, Massachusetts law requires employers with six or more employees to provide eight weeks of unpaid parental leave to a male or female “employee who have completed the initial probationary period set by the terms of employment, not to exceed 3 months, or, if there is no such probationary period, has been employed by the same employer for at least 3 consecutive months as a full-time employee.” Parental leave shall be for the purpose of giving birth or for the placement of a child under the age of 18, or under the age of 23 if the child is mentally or physically disabled, or for adoption with the employee who is adopting or intending to adopt the child. Additionally, the Act clarified the MMLA and further expanded the MMLA in following areas:

(1) An employee seeking to take parental leave shall provide at least two-week notice to their employer of the anticipated start date of their leave and the anticipated date of the employee’s return so that the employer can plan for scheduling needs while the employee is on leave. An employee is provided some wiggle room in providing notice to their employer as soon as practical in the event notice was not provided for reasons beyond the employee’s control;
(2) An employee on parental leave for the adoption of a child must be entitled to the same benefits offered to an employee on leave for the birth of a child;
(3) If an employer agrees to provide leave for longer than 8 weeks, the employer must reinstate the employee at the end of the extended leave unless it clearly informs the employee in writing before the leave and before any extension of that leave, that taking longer than 8 weeks of leave shall result in the denial of reinstatement or the loss of other rights and benefits;
(4) If two employees of the same employer give birth to or adopt the same child, the two employees are entitled to an aggregate of 8 weeks of leave; and
(5) Expanded the employer’s notice requirements, mandating that employers keep a posting in a conspicuous place describing the law’s requirements and the employer’s policies as to parental leave.

The MMLA further provides that an employer may not require an employee to use accrued sick or vacation time during their leave, and further does not require an employer to include the computation of benefits in the leave time, or require that the employer pay for the cost of benefits during the leave time. If maternity leave is unpaid, the employee must be permitted to use, concurrently with the maternity leave, accrued paid sick, vacation or personal time. Additionally, the MMLA does not limit the right of an employee to use accrued vacation, sick leave or personal time before their statutory maternity leave begins, or after their leave ends, in accordance with the employer’s policies and applicable law. Following leave, the MMLA requires that an employee be restored to their previous position, or a similar position, with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of the leave.

A violation of the MMLA constitutes a violation of Massachusetts Discrimination Statute (i.e. M.G.L. c. 151B), which provides relief and damages similar to that arising under the FMLA, as discussed above.

It is important for employers to remember that these statutes set minimum standards, and that employers may wish to adopt more generous policies (e.g. paid leave or longer time period of leave).

Traps for the Unwary
There are some significant traps for the unwary that all employers should understand regarding FMLA and MMLA leave. In particular, employers should be aware that an employee need not make a specific request for FMLA leave to be entitled to it. Rather, the employee need only give the employer enough information to inform the employer that the employer may be entitled to such leave. Also, in the event an employer has more than 50 employees, the statutes should run concurrently, such that the employee who takes leave due to child birth would receive a total of twelve weeks of leave (the first eight weeks count under both the FMLA and MMLA, and the last four count under just the FMLA). In some circumstances, FMLA and MMLA leave may not run concurrently. For example, under the FMLA, when an employee requests, or when the employer has enough information to be informed of the need of leave that may be covered under the FMLA, the employer must, within 2 business days: (1) determine if the leave is covered by the FMLA, and (2) determine if the employee is eligible. A failure to properly designate the leave time could impact the concurrent running of the statutes. For example, if the employer is not subject to the FMLA, then this requirement is inapplicable. However, if the employer is subject to the FMLA, an argument can be made that the twelve week FMLA leave and the eight-week MMLA leave do not run concurrently if the employer failed to designate the leave, in writing, within two days of the employee’s notice and the employee could therefore be entitled to twenty weeks of leave.

Finally, a trap for the unwary employer supervisor is necessary. The U.S. District Court for the District of Massachusetts recently issued a decision in a discrimination case captioned Eichenholz v. Brinks Inc., Case No. 16-cv-11786-LTS, holding for the first time that an employee can now sue his or her supervisor individually for allegedly violating their rights under the FMLA. In fact, the District Court further held that an employer can sue their supervisor individually in a Massachusetts employment discrimination matter even if they do not specifically name the supervisor in the underlying administrative action if the supervisor was put on notice of the complaint.

The take away here is that it is important for employers to develop and maintain consistent policies to protect the company or association from future litigation and from employee abuse of leaves of absence. If you are an employer and do not have policies in place, care should be taken to consider developing a comprehensive leave of absence policy addressing the applicability of the myriad statutes, notice requirements, and documentation. Further, it is highly recommended that an employer served with a complaint of discrimination consult counsel prior to responding to the complaint to put the company or association in the best position to defend against any such actions and to be able to determine exactly who the employee is seeking damages from given the recent changes in the law.

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Footnotes
1 Under the FMLA, employees are eligible so long as they have been employed at least twelve months by the employer, they have worked for at least 1,250 hours during the preceding twelve months, and there are fifty or more employees of the employer at their work site or within seventy-five miles of that work site. Under the FMLA, both parents can take leave from work to care for a newborn, adopted, or injured child, and while FMLA leave may be unpaid, employers are required to continue the employee’s healthcare during the leave period.