Medical Leave Rights FAQ

1. FMLA v. Massachusetts Parental Leave Act 2. ADA v. Massachusetts Fair Employment Practices Act 3. Interactive Process 4. Pregnancy-Related Disabilities 5. M.G.L. c. 151B’s Broad Interpretation

1. What are the similarities and differences between the Family & Medical Leave Act and the Massachusetts Parental Leave Act?

   The Family & Medical Leave Act generally applies to private employers with at least 50 employees within 75 miles. There is no employee threshold for federal and state public agencies and certain schools. In addition to the employee threshold requirement, to be protected under the FMLA, an employee must have been employed for at least 12 months and have worked at least 1,250 during the preceding 12 month period. If these requirements are satisfied, an employee is entitled to 12 weeks off of unpaid leave to recover from a serious health condition, to care for a family member with a serious health condition, or to care for a newborn child or adoption of a child. The latter applies to both men and women. In contrast, the Massachusetts Parental Leave Act is not triggered by a serious health condition and provides 8 weeks of unpaid leave for the purpose of giving birth or adoption. The Act applies to employers with at least six employees and to employees who have completed the probationary period, which is not to exceed three months. Notably, in 2015, the legislature amended and clarified the Act to, among other things, apply to both men and women (the prior version of the Act, as demonstrated here, only afforded women parental leave thus violating workplace anti-discrimination laws). Many nuances to both the FMLA and MPLA apply. For more information, visit the MCAD’s Massachusetts Parental Leave Act Fact Sheet and it’s Q&A under the Guidelines as well as the Department of Labor’s Family & Medical Leave Act Fact Sheet.

2. When am I entitled to protection under the Americans with Disabilities Act and Massachusetts Fair Employment Practices Act apply to me?

   The Americans with Disabilities Act (ADA) applies to employers with at least fifteen employees. In contrast, the Massachusetts Fair Employment Practices Act, as codified under M.G.L. c. 151B, applies to employers with at least six employees. Unlike the FMLA, neither statute carries a work length requirement; both are effective from day one of employment. Both statutes entitle qualified handicapped or disabled employees to reasonable accommodations in the workplace that do not pose an undue hardship to the employer. As discussed here, a qualified handicapped person is defined as an individual who is substantially limited in at least one major life activity and who, with our without reasonable accommodations, is capable of performing the essential functions of the position. As the EEOC Enforcement Guidance (Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act) makes clear, the ADA does not impose a “magic word” requirement to trigger protection. As an example, simply informing a supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing” constitutes a request for a reasonable accommodation and triggers what is known as the “interactive process” even without mention of the ADA.

3. What is the interactive process?

   The interactive process is simply an open dialogue between you and your employer regarding your reasonable accommodation request. According to the MCAD’s Guidelines (Persons with Disabilities in the Workplace Guidelines), the interactive process “should identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations.” As part of this process, the employer may require an employee to provide medical documentation in support of the reasonable accommodation request. The MCAD’s Guidelines, however, caution employers to make “appropriately focused” inquiries. As acknowledged in EEOC Guidance (Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act), in most cases, an employer may not require an employee to release his or her entire medical record since it’s likely to contain information unrelated to the handicap and request for accommodation. Finally, while an employer may require an employee to undergo a separate medical examination, it should articulate how the documentation is insufficient and provide him or her with the opportunity to furnish any missing information. In the end, assuming the medical documentation is sufficient, an employer must grant an employee’s request for undue hardship if it doesn’t pose an undue hardship. Depending on the circumstance, a reasonable accommodation could include time off beyond the twelve weeks allotted under the FMLA.

4. Can a temporary, pregnancy-related medical condition be deemed a disability and entitle me to a reasonable accommodation?

   Yes. The ADA Amendments Act of 2008 expanded the definition of “disability” to include more pregnancy-related conditions, even if the condition is a temporary impairment. Specifically, 29 C.F.R. §1630.2(j)(ix) makes clear that “an impairment lasting or expected to last fewer than six months can be substantially limiting.” In several cases across the country – including, Wanamaker v. Town of Westport, Nayak v. St. Vincent Hospital & Health Care Center, Price v. UTi Integrated Logistics, Mayorga v. Alorica – employees have survived summary judgment and proceeded to trial on pregnancy-related disability claims.

5. My company has less than fifteen employees and the ADA doesn’t apply. Will my employer have more latitude to deny my request for a reasonable accommodation under Massachusetts law?

   No. As discussed here, federal law caught up to M.G.L. c. 151B through the ADA Amendments of 2008. Pursuant to M.G.L. c. 151B, §9, Massachusetts courts have long construed the Fair Employment Practices Act broadly, which resulted in decisions that provided handicapped employees in Massachusetts with greater rights than previously afforded under the ADA. Notably, in Pierce v. Anderson Insulation, the MCAD observed that this “liberal interpretation of Chapter 151B is consistent with Congress’s 2008 amendments to the ADA.”