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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 or 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?
  2. How serious does an illness have to be to make me eligible for FMLA leave?
  3. Who is considered my immediate “family member” for purposes of taking FMLA leave?
  4. What kind of notice do I have to give my employer that I am requesting FMLA leave?
  5. What kind of medical verification may my employer ask for?
  6. When do I need to provide my employer with the medical verification?
  7. Is the leave paid or unpaid? Can I use paid sick, vacation, or personal time during my leave?
  8. Do I need to take the leave all at once?
  9. 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?
  10. What happens to my seniority, retirement, health and other benefits while out on leave?
  11. What happens when I am ready to return to work?
  12. I am just about to have a child, or adopt a child. How much leave can I take?
  13. Do I have to take the leave under FMLA or MMLA to care for my newborn or adopted child right after birth or adoption?
  14. 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?
  15. What kind of situations can I request leave for under the SNLA?
  16. How much notice do I need to give to my employer under the SNLA?
  17. How many times in year can I take off to attend to school meetings or medical/dental appointments?
  18. What can I do if my employer refuses to give me leave, or if I’m retaliated against for asserting my rights to leave?

Q1. Do any of these laws apply to me? Am I a covered worker?

You can take FMLA leave or SNLA leave - if:

  1. your employer has at least 50 employees, and
  2. you have worked for your employer at least 1,250 hours in the last 12 months (an average of about 24 hours per week).

To take leave under the Massachusetts Maternity Leave Act (MMLA), you must

  1. be female,
  2. work for an employer with at least 6 employees and
  3. complete your probationary period (up to 6 mos.). If your work does not have probation, you need to work full time for the same employer for at least 3 months in a row.

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

To get FMLA leave, your health or your immediate family member’s health must be so serious that you cannot work for more than 3 days in a row:

Illness

The illness needs to be serious enough that:

  • you need to be hospitalized, or
  • You have two visits to a doctor, or
  • You have one visit to a doctor and then follow-up treatment.

Poor health

You may also be able to get FMLA leave if you or an immediate family member has such poor health that:

  • you need treatment for a problem that will not go away (the problem is chronic) or
  • you will need treatment for long time before you get better.

Q3. Who is considered my immediate “family member” for Family Medical Leave Act 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 that are 18 years or older.

Q4. What kind of notice do I have to give my employer that I am requesting Family Medical Leave Act leave?

If you know ahead of time that you need leave, the leave is “foreseeable” and you must give your employer 30 days notice. The birth of a child or planned surgery is a foreseeable need for leave. But when you have a sudden need for leave like emergency surgery, you must give notice as soon as you can. A sudden, unexpected need for leave is “unforeseeable”, you do not know ahead of time that you need leave.

You do not need to give written notice to your employer, but it is always a good idea to ask for leave in writing. You do not need to use the words “Family Medical Leave Act” or “FMLA” but you need to let your employer know that you have a medical reason for asking for more than three days leave. You can also ask for FMLA leave when you are adopting a child.

 

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

If you take any leave for health reasons, your employer may ask you for a letter from your doctor that shows you have a serious health condition. But, your employer does not have a right to see your medical records. If you ask for leave to take care of an immediate family member, your employer may ask for a letter from your family member’s doctor that says that your family member needs you as caretaker.

Your employer can require a second or even a third medical opinion. Your employer can also require that your doctor write additional letters as time goes by, but your employer must pay for any additional opinion.

Your employer can also choose the heath care provider who gives the second or third opinion. Your employer cannot ask a health care provider who has regular contracts with your employer.

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

Leave you know you will need

“Foreseeable” leave is leave you know ahead of time that you will need. It includes leave for the birth of a child or planned, non-emergency surgery. You must give your employer at least 30 days notice for foreseeable leave. If your employer asks for verification you must provide verification before you take the leave.

Emergency leave

For unforeseeable or emergency leave, your 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 Family Medical Leave Act (FMLA), the Massachusetts Maternity Leave Act and the Small Necessities Leave Act (SNLA).

Your employer can require you to use paid vacation, sick or personal time. If your employer makes you use up your paid time off first, the rest of your FMLA, MMLA and SNLA leave is unpaid time off.

If your employer does not offer paid sick, vacation or personal time, then your FMLA, MMLA and SNLA leave are all unpaid.

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

Family Medical Leave Act

Under the Family Medical Leave Act (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.

Massachusetts Maternity Leave Act

Under the Massachusetts Maternity Leave Act (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. Family Medical Leave Act (FMLA) leave and workers’ compensation leave can run together. If the injury that the workers compensation is covering is serious enough to get FMLA illness or injury.

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

You will not lose your benefits or seniority you’ve already earned when you are out on leave, but you do not continue to earn benefits (unless your employer has a policy that protects these benefits).

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

Under the Family Medical Leave Act and Massachusetts Maternity Leave Act, you have a right to return to your same job or a similar job that has similar status, pay and seniority. But your employer does not have to give you your old job back if they had a “reduction in force” (downsized), and the job is no longer there. They do not have to create a new job for you either. 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 Family Medical Leave Act, covered workers can take up to 12 weeks of unpaid leave. Under the Massachusetts Medical Leave Act, 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.

If you suffer from a pregnancy-related disability, you may have a right to more than the 8 weeks MMLA leave. The extra time would be a “reasonable accommodation” 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 can get leave under the FMLA (see Question 2 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?

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

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.

Your “child” includes a biological, adopted, foster or step child as well as any other child you are legally responsible for. An “elderly” relative is considered to be a person over the age of 60 who is related to you by blood or marriage.

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

The employer can require 7 days advance notice if you know ahead of time that you will need the leave. If your need for leave is, sudden, it is not "foreseeable," 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 number of times you can take under the SNLA. The time you take is measured in hours. The employer can require you to 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 U.S. Department of Labor’s Wage and Hour Division (1-866-487-9243).

For violations of the MMLA, you can file a complaint with the Massachusetts Commission Against Discrimination (617-994-6000 (Boston), 413-739-2145(Springfield)). After filing with the MCAD, you may choose to bring a private lawsuit.

For violations of the SNLA, you can file a complaint with the wage and hour division of the Attorney General’s office. Your employer’s policies may also give you the right to bring a grievance and ask for a review.


Produced by Western Massachusetts Legal Services with Assistance of a Grant from the Union Community Fund of the Pioneer Valley 7/2004
Last updated by Massachusetts Law Reform Institute, October, 2013


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