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Massachusetts Leave Entitlements Change Yet Again

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Massachusetts long has required that employers provide leave to military veterans wanting to participate in Veterans Day or Memorial Day exercises, parades, or services in their communities of residence. Previously, employers had full discretion to determine whether that time off from work would be paid or unpaid. Effective July 14, 2016, however, that no longer is the case with regard to Veterans Day leave.

According to this change (codified at M.G.L. chapter 149, section 52A½), employers with 50 or more employees are required to provide paid leave to any veteran desiring to participate in a Veterans Day exercise, parade, or service in his or her community of residence.

There still is no paid leave requirement on Veterans Day for employers with fewer than 50 employees. And there still is no paid leave requirement for any employer on Memorial Day.

Leave requirements in Massachusetts thus become even more complicated. Four pertinent sets of rules (those pertaining to parental leave, sick leave, domestic abuse leave, and now Veterans Day leave) have changed in roughly the last year alone. And although some of the rules are complex,1 employers may find the following survey chart useful, at least as a starting point for ensuring that their leave policies are adequate. 

Source of leave entitlement

Number of employees required to trigger leave entitlement

Authorized reasons for leave

Criteria to be met by employee to qualify for leave

Amount of leave authorized

Paid leave required?

Family & Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825.50 within 75 miles of employee’s worksite.Birth, placement of child for adoption or foster care, employee’s or family member’s serious health condition, military exigency for servicemember in family, serious injury or illness of servicemember in family.12 months employment; 1250 hours service during immediately preceding 12 month period.Up to 12 workweeks normally, but up to 26 workweeks for care of family servicemember’s injury or illness.No.
Uniformed Services Employment & Reemployment Rights Act, 38 U.S.C. § 4301 et seq.; 29 C.F.R. Part 1002.1Voluntary or involuntary duty in “the uniformed services” (i.e., the Armed Forces, National Guard, Air National Guard, commissioned corps of National Health Service, or any other category of persons designated in war or national emergency).Duty in “the uniformed services.” (Right to be reinstated in civilian position requires satisfying additional criteria.)Up to 5 years or more.No.
Massachusetts Earned Sick Time Law, M.G.L. c, 149, § 148C; 940 C.M.R. 33.00. (Statute takes effect July 1, 2015.)1 for unpaid leave; 11 for paid leave.Care for sickness or illness of employee or certain family members; attend routine medical appointments of employee or family member; address effects of domestic violence on employee or employee’s child.Primary place of work in Massachusetts. (Leave begins to accrue when work begins and can be taken 90 days later.)Up to 40 hours per year in addition to leave required by other laws. (Leave accrues at rate of 1 hour of leave for every 30 hours of work.)Yes, if employer has 11 or more employees; otherwise, no.
Massachusetts Parental Leave Act, M.G.L. c. 149, § 105D6 in general, but only 1 if employee is domestic worker.Birth or adoption.Full-time employment for at least 3 months or completion of initial probationary period set by terms of employment, not to exceed 3 months.8 weeks per child.No.
Massachusetts Domestic Violence and Abusive Situation Leave Act, M.G.L. c. 149, § 52E50Pursue medical attention, counseling, victim services, legal assistance, housing procurement, court or grand jury appearance, district attorney meeting, or other activity required as a result of domestic violence or abuse.Be a paid employee personally victimized by abusive behavior, or be a paid employee with a family member victimized by abusive behavior, but not be perpetrator of the abusive behavior.Up to 15 days in any 12 month period (in addition to all other forms of leave).No.
Massachusetts Small Necessities Leave Act, M.G.L. c. 149, § 52D.50 within 75 miles of employee’s worksite.Participate in child’s school activities, accompany child to routine medical or dental appointments, accompany elderly relatives to routine medical, dental, or other professional services appointments.12 months employment; 1250 hours service during immediately preceding 12 month period.Up to 24 hours in any 12 month period (in addition to leave provided under the FMLA).No.
Massachusetts Leave of Absence for Voting Statute, M.G.L. c. 149, § 1781Vote in election.Be entitled to vote and ask for leave.2 hours after the opening of the polls.No.
Massachusetts Leave for Military Training Law, M.G.L. c. 149, § 52A.1Military training.Be a non-temporary employee receiving military training as a member of the ready reserve of the armed forces.Up to 17 days in any calendar year.No.
Massachusetts Veterans or Memorial Day Leave Law, M.G.L. c, 149, § 52A½.1Participate in Veterans Day or Memorial Day exercise, parade or service.Be a veteran but not an employee whose services are “essential and critical to the public health or safety and … essential to the safety and security of [the] employer or property thereof.”“Sufficient time to participate” in Veterans or Memorial Day activities.Yes, if (a) employer has 50 or more employees and (b) activities are for Veterans Day; otherwise, no.
Massachusetts Jury Service Law, M.G.L. c. 234A, §§ 48-49, 60-61; M.G.L. c. 268, §14A.1Serve as juror or grand juror.Be notified of jury or grand jury duty.Unlimited.Yes, for first 3 days only (unless court excuses payment).
Massachusetts Witness in Criminal Actions Law, M.G.L. c. 268, § 14B.1Testify in criminal trial.Be a victim of a crime or be subpoenaed to attend a criminal action as a witness.Unlimited.No.

Each set of leave rules begins with its own statute. Regulations interpreting some of the statutes are voluminous. Sanctions for noncompliance can be severe. There often is no substitute for closely analyzing an employee’s particular circumstances to determine how they fit within the established legal framework. And the advice of experienced employment counsel can be critical.

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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