Your Right To Take Off From Work For Personal or Family Needs

Massachusetts workers have three different laws that give them the right to take time off from work for the birth of adoption of a child, to take care of seriously ill family members, to recover from their own serious illnesses, or to take care of routine family responsibilities. Each law has certain qualifications, covers different conditions and different employers.

The Family and Medical Leave Act (FMLA) is a federal law guaranteeing covered workers up to 12 weeks of unpaid leave to care for newborns, newly adopted children and seriously ill family members, or to recover from their own serious illnesses.
The Massachusetts Maternity Leave Act (MMLA) allows covered female workers to take up to eight weeks following the birth or adoption of a child.
The Small Necessities Leave Act (SNLA) allows workers to take up to 24 hours per year off from work to go to their child’s education-related school activities, or to accompany a child or elderly relative to medical or dental appointments.

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1. How do I know if any of these laws apply to me?

To be covered under the FMLA and SNLA you must be working for a company with at least 50 employees. You must have worked for the employer for at least 1250 hours in the last 12 months (an average of about 24 hours per week) to be eligible for leave.

To be covered under the MMLA, you must be a female worker working for an employer with at least 6 employees. You must have completed your probationary period (up to 6 mos.) or, if there is not probation, worked full time for your employer for at least 3 consecutive months.

Q2. How serious does an illness have to be to make me eligible for FMLA leave?

You or your immediate family member must have a serious health condition, which means that you are unable to work for more than 3 consecutive days and either need to be hospitalized, or have two visits to a doctor, or one visit with follow-up treatment.

Q3. Who is considered my immediate “family member” for purposes of taking FMLA leave?

Your spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term “parent” does not include your “in-laws” (your spouse’s parents). The terms son or daughter do not include individuals age 18 or over unless they 41">

Q4. What kind of notice do I have to give my employer that I am requesting FMLA leave?

If you know in advance of your need for leave, you must give 30 days notice. However for unforeseeable leave, you must give notice as soon as you can, under the circumstances. This can be at the time you’re asking for time off. You do not need to give written notice to your employer, but it’s always a good idea to do so. You do not need to use the words “FMLA” but need to give your employer enough information so that they know you’re asking for more than three days leave for a medical reason.

Q5. What kind of medical verification may my employer ask for?

Your employer may request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists. But, your employer does not have a right to see your medical records. If you are requesting leave to take care of an immediate family member, your employer may ask for a doctor’s verification that you are needed to provide care.

Q6. When do I need to provide my employer with the medical verification?

For leave that’s foreseeable (for example, the birth of a child or planned, non-emergency surgery), you must give your employer at least 30 days notice of the need for leave and, if verification is requested, provide verification before taking the leave. For unforeseeable, or emergency leave, the employer must give you at least fifteen days to provide the medical verification.

Q.7 Is the leave paid or unpaid? Can I use paid sick, vacation, or personal time during my leave?

Under all 3 laws, if your employer gives you paid sick, vacation and personal time, you can use that paid time during your leave. Under the FMLA and the SNLA your employer can require you to use paid vacation, sick or personal time. If you do not have this paid time, then the leave is unpaid.

Q.8 Do I need to take the leave all at once?

Under the FMLA, you may take 12 weeks leave all at once, over a longer time period on a part-time basis, or at several different times during the year for different qualifying reasons. Under the MMLA, your employer can require that you take the 8 weeks leave all at once.

Q9. What if I’m out on leave due to a workplace injury covered by workers compensation; does this leave time count against my FMLA leave entitlement?

It can. FMLA leave and workers’ compensation leave can run together, provided the injury for which you’re getting workers compensation is also a qualifying serious illness or injury.

Q10. What happens to my seniority, retirement, health and other benefits while out on leave?

You won’t lose your benefits or seniority you’ve already earned, but you do not continue to earn benefits (unless your employer’s policies provide for greater protections).

Q.11 What happens when I am ready to return to work?

Under the FMLA and MMLA, you have a right to return to your same or a similar job, unless the job was eliminated due to a company “reduction in force.” For FMLA leave, your employer can ask you to have a medical exam or provide a “fitness for duty” certificate signed by your doctor before allowing you back to work.

Q.12 I am just about to have a child, or adopt a child. How much leave can I take?

Under the FMLA, covered workers can take up to 12 weeks of unpaid leave. Under the MMLA, female employees can take up to 8 weeks of unpaid leave. If you are covered under both laws, you get a maximum of 12 weeks in a 12 month period.

Under the MMLA, if you need more than 8 weeks due to your pregnancy-related disability, you may have additional rights under the Massachusetts discrimination statute. If you are unable to come back to work due to the serious health condition of your child, see if you qualify for leave under the FMLA, above.

Q13. Do I have to take the leave under FMLA or MMLA to care for my newborn or adopted child right after birth or adoption?

Under the MMLA, the leave covers 8 weeks following the birth or adoption of the child. Under the FMLA, the leave needs to be close in time to the birth or adoption, and the 12 weeks can be taken all at once, or can be spread out over the year.

Q14. I need to go to a school conference for my child, or take a relative to a medical or dental appointment. Can my employer refuse to let me go?

Any employer/employee covered under the FMLA is also covered under the Massachusetts Small Necessities Leave Act (SNLA). This Act allows employees to take up to 24 hours of unpaid leave during any 12 month period (in addition to the 12 weeks available under the FMLA).

Q15. What kind of situations can I request leave for under the SNLA?

You can request time off from work to participate in a child’s educational activities (for example, a parent-teacher conference, special ed meeting or interviewing a new school), to accompany your child or elderly relative to routine medical or dental appointments, or to interview a nursing home.

Q16. How much notice do I need to give to my employer under the SNLA?

The employer can require 7 days advance notice for leave requests you know about in advance. If your need for leave is not foreseeable, you should notify your employer as soon as possible. It is best to ask for the time in writing.

Q17. How many times in year can I take off to attend to school meetings or medical/dental appointments?

There is no numerical limit under the SNLA. Time can be taken hours at a time. The employer can require you take time off at least one hour at a time.

Q18. What can I do if my employer refuses to give me leave, or if I’m retaliated against for asserting my rights to leave?

It is illegal for your employer to fire you, or take any adverse employment action against you, because you took legally protected leave. If your employer violates your rights under the FMLA, you can file a private lawsuit, or bring a complaint to the Federal Equal Employment Opportunity Commission (800-669-4000). For violations of the MMLA or SNLA, you can file a complaint with the Massachusetts Commission Against Discrimination (617-994-6000 (Boston), 413-739-2145(Springfield)), or bring a private lawsuit. Your employer’s policies may also give you the right to bring a grievance and ask for a review.

Prepared by Western Massachusetts Legal Services With Assistance of a Grant from the Union Community Fund of the Pioneer Valley 7/2004

Produced by Western Massachusetts Legal Services
Created July, 2004