Rosen Law Office

Under the Massachusetts Maternity Leave Act, anyone who employs at least six people has to offer eight weeks of unpaid maternity leave.  G.L. c. 149, § 105D.  A woman who is giving birth or adopting a child must give at least two weeks’ notice prior to her anticipated date of departure.  When she comes back, she must be restored to her position without any loss of seniority or benefits.

An employer said its employee could take off up to ten weeks if she had a caesarian section.  She required the caesarian procedure and stayed out nine weeks.  When she was ready to come back, there was no job for her, and she sued.  The employer’s defense was that the employee had been out longer than the eight weeks the statute permitted.

They employee relied on an guideline of the Mass. Commission Against Discrimination, which states that any employer who wants to offer more than eight weeks’ leave—but isn’t guarantying the job beyond that time—has to tell employees so in writing.  That guideline was binding on the employer.  The employee ended up with a judgment of nearly $1.2 million.

The case is on appeal.  According to the appellees’ brief, the question is whether employers “may rely on clear statutory provisions or whether they must instead abide by a vague, inconsistent, and poorly circulated “guideline” of the MCAD, which … does not have the force of law.”  Global NAPS v. Awiszus, et al., SJC-10586, DAR-18231.

–Joel Rosen