Employee Leave Requests Due To Complications From Pregnancy; What Massachusetts Employers Need To Know

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Massachusetts employers must be aware of several potentially relevant laws when an employee requests leave or a reduced schedule as a result of complications from pregnancy. Employers with at least six employees are covered by the Massachusetts Maternity Leave Act ("MMLA"). The MMLA entitles female employees that have completed an initial probationary period to up to 8 weeks of leave for the purpose of giving birth or adopting a child. The leave is either paid or unpaid at the discretion of the employer, but it is only available once the child has been born.

The Family Medical and Leave Act ("FMLA") is a federal law that requires employers with at least 50 employees to provide up to 12 weeks of unpaid leave to employees for qualified medical and family reasons, including complications relating to pregnancy. Thus, Massachusetts employers with 50 or more employees are covered by both the FMLA and the MMLA.

Where leave is taken for a reason specified in both the FMLA and MMLA (such as maternity leave), the leave may be counted simultaneously against the employee's entitlement under both laws. Unlike the FMLA, however, the MMLA does require an employer to provide leave for any pregnancy-related medical conditions prior to birth. This creates the possibility that an employee might exhaust the 12 weeks of FMLA leave because of complications during a pregnancy, and then still be entitled to 8 weeks of MMLA leave after the birth (because MMLA leave could not have been used before the birth).

Even though the MMLA does not specifically require that an employee be given leave prior to birth, it would be a mistake for Massachusetts employers with fewer than 50 employees to believe that they are free to deny an employee's request for leave because of complications from pregnancy. This is because the MMLA requires employers to treat pregnancy-related disabilities the same as other temporary disabilities. So, if a Massachusetts employer has a short-term disability plan in place, they must treat requests for pregnancy-related leave consistent with company policy or face liability for gender discrimination.

Finally, regardless of whether there is a short-term disability plan in place, employers with at least 15 employees must be aware that complications from pregnancy may be considered a disability under the federal Americans with Disabilities Act ("ADA"). Broadly, the ADA requires an employer to provide a reasonable accommodation to a disabled employee. If complications from a pregnancy are considered a disability, then an employer could face liability for refusing an employee's request for leave for complications arising from pregnancy.

Given the number of overlapping laws, this is an especially complex area that employers should consider carefully when an employee asks for leave due to complications from pregnancy.

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