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The 191st General Court of the Commonwealth of Massachusetts

Section 2: Leave requirements

[ Paragraph (1) of subsection (a) added by 2018, 121, Sec. 29 effective January 1, 2021. See 2018, 121, Sec. 33.]

  Section 2. (a)(1) Family leave shall be available to any covered individual for any of the following reasons: (i) to bond with the covered individual's child during the first 12 months after the child's birth or the first 12 months after the placement of the child for adoption or foster care with the covered individual; (ii) because of any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces; or (iii) in order to care for a family member who is a covered servicemember.

[ Paragraph (2) of subsection (a) added by 2018, 121, Sec. 29 and as amended by 2019, 21, Sec. 3 effective January 1, 2021. See 2018, 121, Sec. 33.]

  (2) Medical leave shall be available to any covered individual with a serious health condition that makes the covered individual unable to perform the functions of the covered individual's position. This provision shall be construed consistent with the equivalent provision of the federal Family and Medical Leave Act of 1993, codified at 29 U.S.C. 2612(a)(1)(D). A covered individual who is a former employee shall be considered unable to perform the functions of the covered individual's position if the covered individual is unable to perform the functions of the covered individual's most recent position or other suitable employment as that term is defined under subsection (c) of section 25 of chapter 151A.

[ Subsection (b) added by 2018, 121, Sec. 29 effective July 1, 2021. See 2018, 121, Sec. 34.]

  (b) Family leave shall be available to any covered individual to care for a family member with a serious health condition.

  (c)(1) A covered individual shall not be eligible for more than 12 weeks of family leave in a benefit year; provided, however, that a covered individual taking family leave in order to care for a covered servicemember pursuant to clause (iii) of paragraph (1) of subsection (a) shall not be eligible for more than 26 weeks of family leave in a benefit year. A covered individual shall not be eligible for medical leave for more than 20 weeks in a benefit year. A covered individual shall not take more than 26 weeks, in the aggregate, of family and medical leave under this chapter in the same benefit year. Nothing in this section shall prevent a covered individual from taking a medical leave during pregnancy or recovery from childbirth if supported by documentation by a health care provider that is immediately followed by family leave, in which case the 7 day waiting period for family leave shall not be required.

  (2)(A) Leave under clause (i) of paragraph (1) of subsection (a) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise. Leave under clause (iii) of paragraph (1) of subsection (a) or under paragraph (2) of said subsection (a) or under subsection (b), may be taken intermittently or on a reduced leave schedule by an employee when medically necessary. Leave under clause (ii) of said paragraph (1) of said subsection (a) may be taken intermittently or on a reduced leave schedule by an employee.

  (B) Leave under paragraphs (1) or (2) of subsection (a), or under subsection (b) of this section may be taken intermittently or on a reduced leave schedule by a self-employed individual or former employee.

[ Subparagraph (C) of paragraph (2) of subsection (c) effective until June 13, 2019. For text effective June 13, 2019, see below.]

  (C) The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the covered individual is entitled under this chapter.

[ Subparagraph (C) of paragraph (2) of subsection (c) as amended by 2019, 21, Sec. 4 effective June 13, 2019. For text effective until June 13, 2019, see above.]

  (C) The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the covered individual is entitled under this chapter beyond the amount of leave actually taken.

  (d) While on family or medical leave, a covered individual shall receive a weekly benefit amount, as provided in section 3.

  (e) An employee who has taken family or medical leave shall be restored to the employee's previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave. An employer shall not be required to restore an employee who has taken family or medical leave to the previous or to an equivalent position if other employees of equal length of service credit and status in the same or equivalent 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 the employee was entitled as of the date of leave.

  (f) The taking of family or medical leave shall not affect an employee's right to accrue vacation time, sick leave, bonuses, advancement, seniority, length-of-service credit or other employment benefits, plans or programs. During the duration of an employee's family or medical leave, the employer shall continue to provide for and contribute to the employee's employment-related health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.

[ Subsection (g) effective until March 29, 2019. For text effective March 29, 2019, see below.]

  (g) Subsections (e) and (f) shall not apply to a self-employed individual taking family or medical leave under this chapter or a person who was a former employee who satisfies the conditions set forth in clause (iii) of the definition of "Covered individual'' in section 1 when that person began taking family or medical leave under this chapter.

[ Subsection (g) as amended by 2019, 5, Sec. 18 effective March 29, 2019. For text effective until March 29, 2019, see above.]

  (g) Subsections (e) and (f) shall not apply to a self-employed individual taking family or medical leave under this chapter or a person who was a former employee who satisfies the conditions set forth in clause (iv) of the definition of "Covered individual'' in section 1 when that person began taking family or medical leave under this chapter.

  (h)(1) This chapter shall not: (i) obviate an employer's obligations to comply with any company policy, law or collective bargaining agreement that provides for greater or additional rights to leave than those provided for by this chapter; (ii) in any way curtail the rights, privileges or remedies of any employee under a collective bargaining agreement or employment contract; or (iii) be construed to allow an employer to compel an employee to exhaust rights to any sick, vacation or personal time prior to or while taking leave under this chapter.

  (2) An employer may require that payment made pursuant to this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy such that the employee will receive the greater of the various benefits that are available for the covered reason. Any leave provided under a collective bargaining agreement or employer policy that is used by the employee for a covered reason and paid at the same or higher rate than leave available under this chapter shall count against the allotment of leave available under this chapter. The employer shall give employees written notice of this requirement.

  (i) Leave taken under this chapter shall run concurrently with leave taken under section 105D of chapter 149 or under the Family and Medical Leave Act of 1993, codified at 29 U.S.C. section 2611, et seq. Employees who take leave under this chapter while ineligible for leave under the Family and Medical Leave Act of 1993 may take leave under the Family and Medical Leave Act of 1993 in the same benefit year only to the extent they remain eligible for concurrent leaves under this chapter.

  (j) A self-employed individual may elect coverage under this chapter and become a covered individual for an initial period of not less than 3 years by filing a notice of election in writing with the department and making contributions as required in section 6 to the Family and Employment Security Trust Fund established in section 7; provided, however, that a self-employed individual who elects coverage shall not be eligible for benefits until that individual has made such required contributions for at least 2 calendar quarters of the individual's last 4 completed calendar quarters. The election shall become effective on the date of filing the notice. The department shall establish a process by which self-employed individuals may elect coverage under this chapter.