Bill H.3276

HOUSE DOCKET, NO. 3627 FILED ON: 1/20/2017

HOUSE . . . . . . . . . . . . . . . No. 3276

By Mr. Cabral of New Bedford, a petition (accompanied by bill, House, No. 3276) of Antonio F. D. Cabral and others for legislation to establish paid parental leave for public employees. Public Service.

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act to establish parental leave for public employees.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.The General Laws are amended by inserting after chapter 32B the following chapter:-

CHAPTER 32C

PAID PARENTAL LEAVE FOR PUBLIC EMPLOYEES

Section 1.Definitions. In this chapter—

(a)the term “base period” has the same meaning as provided by section 1(a) of chapter 151A;

(b)the term “benefit year” has the same meaning as provided by section 1(c) of chapter 151A;

(c)the term “child” has the same meaning as provided to “son or daughter” by the Federal Family Medical Leave Act, 29 U.S.C. § 2611(12);

(d)the term “commission” means the Massachusetts commission against discrimination, as established by section 56 of chapter 6;

(e)the term “employee” has the same meaning as provided by section 2(b) of chapter 32A and shall include the employees, as defined in section 2 of chapter 32B, of a county, city, town or district which has adopted the provisions of this chapter pursuant to section 7 hereof;

(f)the term “employer” means the Commonwealth of Massachusetts or one of its subdivisions;

(g)the term “employment” has the same meaning as provided by section 1(k) of chapter 151A;

(h)the term “employment benefits” means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits, and pensions;

(i)the term “family and medical leave act” means the Federal Family and Medical Leave Act of 1993, 29 U.S.C. § 2611;

(j)the term “parental leave” means leave taken by an employee from employment to provide care for a child for one of the following reasons:

(1)The birth of the child, who is a biological child of the employee.

(2)The placement of the child with the employee for adoption or foster care.

(k)the term “individual average weekly wage” has the same meaning as “average weekly wage” as defined in section 1(w) of chapter 151A and shall be calculated using the base period earnings as defined by section 1(a) of chapter 151A;

(l)the term "average weekly wage" means the average weekly wage as determined by the division of employment and training pursuant to section 29(a) of chapter 151A;

(m)the term "wage" means all remuneration as defined in section 1(s) of chapter 151A; and

(n)the term “weekly benefit amount” means the amount of parental leave benefits paid to an employee on leave pursuant to this chapter on a weekly basis, as provided by section 3, subsection 3, of this chapter.

Section 2.Parental Leave Established.

(a)Eligibility for Parental Leave. An employee is eligible for parental leave if he has met the monetary eligibility requirements set forth in section 24(a) of chapter 151A.

(b)Length of Leave.

(1)The duration of parental leave shall be limited to the following maximum amounts of time during any 12-month period:

(i)12 weeks on a full-time basis.

(ii)The equivalent of 12 weeks on a full-time basis, where the employee takes leave on a part-time basis.

(iii)A combination of full-time and part-time leave as set forth in clauses (i) and (ii), provided that such leave shall not exceed the equivalent of 12 weeks on a full-time basis.

(2)If 2 employees are eligible for leave as a result of the birth or placement of the same child, the first of such employees may take any portion of leave for which a single employee is eligible pursuant to this chapter and the second of such employees may take any remaining portion of said leave not taken by the first employee.

(3)The entitlement to leave shall expire at the end of the 12-month period beginning on the date of the birth or placement.

(c)Certification. An employer may, at its option, require that a request for parental leave pursuant to this chapter be supported by a certification of birth or placement that meets the criteria set forth in section 4.

(d)Reinstatement and Employment Benefits.

(1)An employee who takes parental leave pursuant to this section shall be restored to the employee’s previous position, or to a substantially similar position, with the same status, pay, employment benefits, length of service credit, and seniority as of the date of leave.

(2)An employer shall not be required to restore an employee who has taken parental leave to the previous or to a substantially similar position if other employees of equal length of service credit and status in the same or substantially similar positions have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of leave; provided, however, that the employee who has taken leave shall retain any preferential consideration for another position to which he was entitled as of the date of leave.

(3)Employers may require employees taking parental leave to use up to 2 weeks of accrued vacation time prior to taking said leave. Other than said 2 weeks of vacation time, taking parental leave shall not affect an employee's right to receive accrued vacation time, sick leave, bonuses, advancement, seniority, length of service credit, employment benefits, plans or programs for which the employee was eligible at the date of the employee’s leave, and any other rights incident to the employee’s employment.

(4)During the duration of an employee’s parental leave, the employer shall continue to provide for and contribute to the employee’s employment-related health insurance benefits, if any, under the same terms and conditions as those existing prior to leave.

(5)Nothing in this chapter shall be construed so as to affect any bargaining agreement, company policy, or other federal, state, or municipal law which provides for greater or additional rights to leave than those provided for by this section.

(e)Notice.

(1)Where an employee intends to take parental leave and where the need for leave is foreseeable, the employee shall notify the employer of the intended leave at least 30 days prior to the date that the leave is to begin, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

(2)The notice required under this subsection shall consist of the anticipated starting date of the leave, the length of the leave, and the expected date of return.

(f)Unlawful Practices.

(1)It shall be unlawful for any employer to retaliate by discharging, firing, suspending, expelling, disciplining or in any other manner discriminating against an employee for exercising any right to which such employee is entitled under this section or with the purpose of interfering with the exercise of any right to which such employee is entitled under this section.

(2)It shall be unlawful for any employer to retaliate by discharging, firing, suspending, expelling, disciplining or in any other manner discriminating against an employee who has filed a complaint or instituted or caused to be instituted a proceeding under or related to this section, has testified or is about to testify in an inquiry or proceeding, or has given or is about to give information connected to any inquiry or proceeding relating to this section.

(3)Any negative change in the seniority, status, employment benefits, pay, or other terms or conditions of employment of an employee who has been restored to a position pursuant to this section that occurs within 6 months of such restoration, or of an employee who has participated in proceedings or inquiries pursuant to this section within 6 months of the termination of proceedings shall be presumed to be retaliation under this section.

(g)Administrative Enforcement. The commission shall be responsible for the interpretation and enforcement of this section and may promulgate rules and regulations pursuant thereto.

(h)Enforcement and Relief. Enforcement of this section and relief for violations of this section shall be governed by the procedures set forth in sections 5 through 9 of chapter 151B.

Section 3.Parental Leave Benefits.

(a)Parental Leave Benefits. An otherwise eligible employee who is on parental leave shall be entitled to receive parental leave benefits in the amount and manner provided by this section and according to regulations promulgated by the division.

(b)Amount of Benefits. For an employee who takes leave on—

(1)a full-time basis, the weekly benefit amount shall be equal to 60 per cent of the eligible individual’s weekly wage up to a maximum of $1,000 per week. On January 1, the division shall adjust the maximum weekly benefit amount for that year to reflect changes in the United States Bureau of Labor Statistics Consumer Price Index for the Boston-Cambridge-Quincy consolidated metropolitan statistical area for all urban consumers, all goods, or its successor index; and

(2)a part-time basis, the weekly benefit amount shall be prorated.

Section 4.Certification Required.

(a)An employee who makes a claim for parental leave benefits because of the birth of a child of the employee shall provide either a birth certificate or a certification issued by the health care provider of the child of the eligible employee. The certification shall be sufficient if it states the date of the child’s birth.

(b)An employee who makes a claim for parental leave benefits because of the placement of a child with the employee for adoption or foster care shall provide a certification issued by the health care provider of the child, an adoption or foster care agency involved in the placement, or by other persons as determined by the division. The certification shall be sufficient if it states the date of placement.

(c)An employee who makes a claim for parental leave because of the placement with the employee for adoption or foster care of a child 18 years of age or older and incapable of self-care because of a mental or physical disability shall, in addition to the certification required by paragraph (b) of this subsection, also provide a certification issued by the health care provider of the child, or by other persons as determined by the division. The certification shall be sufficient if it states the nature of the disability and fact that the child is incapable of self-care.

(d)Ineligibility In Certain Cases. An individual shall not be eligible to receive parental leave benefits if the appropriate public authority of the employer finds or the relevant procedures established by a collective bargaining agreement to which the employee is a party determines that the individual, for the purpose of obtaining parental leave benefits, has willfully made a false statement or representation, with actual knowledge of the falsity thereof, or has willfully withheld a material fact concerning the facts required to be certified pursuant to this subsection.

Section 5.Wages and Other Forms of Wage Replacement.

(a)No individual may receive parental leave benefits under this section for a week in which the individual receives an amount equal to or greater than the weekly benefit amount in the form of wages or a wage replacement under any of the following:

(1)Any government program or law, including but not limited to unemployment insurance, worker's compensation other than for permanent partial disability incurred prior to the birth or placement of the child, or under other state or federal temporary or permanent disability benefits law.

(2)A permanent disability policy or program of an employer.

(3)A temporary disability policy or program of an employer.

(4)A paid sick, vacation, family, or medical leave policy of an employer. For a week in which an individual receives wages or a wage replacement less than the weekly benefit amount, the individual shall receive parental leave benefits equal to the difference between the weekly benefit amount and the amount of wages or wage replacement received.

(b)Any wage replacement received under the programs or policies listed in subsection (a) and resulting from the same birth or adoption on which the individual’s claim for parental leave benefits is based shall be deducted from the total amount of parental leave benefits for which the individual would otherwise be eligible; provided that this subsection shall not apply to wage replacement received as a result of a paid sick or vacation policy of an employer.

Section 6.Massachusetts Division of Parental Leave. There shall be a division of family and medical leave within the executive office of labor and workforce development which shall be administered by a director appointed by the Governor. The division shall produce an annual report detailing all parental leave benefits paid and shall make this report available online no later than 60 days after the end of the commonwealth’s fiscal year.

Section 7.Municipal Employees. Any county, city, town or district may adopt the provisions of this chapter in order to extend parental leave benefits to its employees, in the following manner: in a county, by a vote of the county commissioners; in a city having a Plan D or a Plan E charter, by majority vote of the city council and approval by the manager; in any other city, by majority vote of the city council and approval of the mayor; in a town, by vote of the board of selectmen; in a regional school district, by vote of the regional district school committee; and in all other districts, by vote of the registered voters of the district at a district meeting or by vote of the district’s governing board.

SECTION 2.Section 4 of chapter 151B of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after subsection 11A the following subsection:-

“11B. (1) For an employer to discharge, fire, suspend, expel, discipline or in any other manner discriminate against an employee—

(i) for exercising any right to which such employee is entitled under the provisions of chapter 32C; or

(ii) with the purpose of interfering with the exercise of any right to which such employee is entitled under chapter 32C.

(2) For any employer to discharge, fine, suspend, expel, discipline or in any other manner discriminate against an employee who has filed a complaint or instituted or caused to be instituted a proceeding under or related to chapter 32C, or who has testified or is about to testify in an inquiry or proceeding, or who has given or is about to give information connected to any inquiry or proceeding relating to chapter 32C.

(3) For purposes of this subsection, any negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment of an employee who has been restored to a position pursuant to chapter 32C that occurs within 6 months of such restoration, or of an employee who has participated in proceedings or inquiries pursuant to chapter 32C within 6 months of the termination of proceedings shall be presumed to be retaliation.”.

SECTION 3.Paragraph (2) of subsection (a) of section 2 of chapter 62 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after clause (Q) the following clause:

“(R) Amounts received by an individual for parental leave under chapter 32C of the General Laws.”.

Name:	District/Address:	Date Added:
Antonio F. D. Cabral	13th Bristol	1/20/2017
Mike Connolly	26th Middlesex
Mary S. Keefe	15th Worcester
Paul R. Heroux	2nd Bristol