Maternity Leave Rights for Men

Despite Contrary Language in the Massachusetts Maternity Leave Act, the Massachusetts Commission Against Discrimination Announced in June 2008 that Men are Entitled to the same 8 Weeks of Leave that Only Women Formerly Received to care for Children

In a radical shift of law, the MCAD announced in June that men are now entitled to take 8 weeks off to care for a newborn or adopted child. Employers who don’t provide the benefit face the prospect of a time-consuming and costly lawsuit.

The MCAD attempted to quietly announce its new legal interpretation but managed to instead send shockwaves through the business and legal communities. The agency’s wholly new paternity leave idea contradicts prior practice and the express terms of a Massachusetts statute, which requires employers to offer maternity leaves only to women. Even the MCAD’s own web site instructed in the past that men were not entitled to the 8 weeks of unpaid leave that state law has long provided for women who give birth.

The MCAD’s announcement means employers across the state must quickly revise their handbooks and leave policies to ensure compliance with the law. As part of the process, employers should evaluate other policies as well and devise a plan for notifying employees of their rights to maternity leaves and other benefits.

To make matters more confusing, this may not be the last time employers are sent scrambling to deal with changes in this area of employment law. The state legislature has yet to speak to the MCAD’s new reading of the law, and it will certainly do so by either correcting the Commission or affirming it. This might be done by revising the maternity leave statute or, perhaps, simply remaining silent and permitting the MCAD to enforce its new rule on maternity leaves for men.

Employers across the state must quickly revise their handbooks and leave policies, evaluate other policies for legal compliance, and devise a plan for notifying employees

As part of its review process, lawmakers will likely evaluate the results-driven logic that the MCAD applied in reaching its maternity leave conclusion. Citing both the 2004 state court ruling that legalized gay marriage and a revision to the maternity leave statute so that it applies to adoptions, the Commission said that it decided to extend leave rights to men as a matter of fairness.

An MCAD official explained that, without that change, two married women who adopt a child could each take 8 weeks of leave while two married men who did the same could not take any. The Commission called this result troubling and said it was inconsistent with the MCAD’s mandate to eliminate all forms of discrimination in Massachusetts.

There’s no telling how state lawmakers or the courts will view the MCAD’s action (to date, no court has ruled that maternity leaves for men are required under state law). For employers, the only certainty is that their policies must now be quickly changed.

By Attorney Jack K. Merrill - Framingham, MA Employment Lawyer

Attorney Jack K. Merrill is a Massachusetts employment lawyer and specializes in employment law and civil litigation. He counsels small businesses and individuals on discrimination cases and other employment related legal matters. 

With law offices in Framingham, MA and Milford, MA, our employment law lawyers provide legal services to individuals and businesses throughout the Boston metro west and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.