The law can only be overridden if the policy is more generous then the law. In other words, if benefits provided 10 weeks, then it would include the MMLA.

Since your short term disability and pregnancy leave are separate occurrences, you would be able to take 8 weeks leave (as per your state law), but you may not be entitled to pay if you take leave (since that was covered when you took disability).



Here are the relevant rules from the MMLA for you to review, courtesy of the Massachusetts Commission Against Discrimination (MCAD):

III. Eligibility For Leave Under the MMLA

A female employee is eligible for maternity leave under the MMLA if:

A. She has completed the initial probationary period, if any, set by the terms of her employment; or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee; and

B. she is absent from such employment for a period not exceeding eight weeks for the purpose of:

    * giving birth; or
    * adopting a child under the age of 18; or
    * adopting a child under the age of 23, if the child is mentally or physically disabled; and

C. she gives her employer at least two weeks notice of her anticipated date of departure and intention to return.

If an employee meets these eligibility requirements, the employer must grant eight weeks of unpaid maternity leave under the MMLA. An employer cannot refuse to grant MMLA leave on the grounds that doing so would constitute a hardship.

The MMLA, by its terms, provides maternity leave to female employees only. This means that the MCAD is unable to take jurisdiction over claims in which male employees are seeking eight weeks of unpaid paternity leave. Providing maternity leave in excess of the eight weeks required by the MMLA to female employees only, and not to males, would in most circumstances constitute sex discrimination in violation of Chapter 151B.

An employer who provides leave to female employees only, and not to male employees, may also violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA. According to the EEOC, "[w]hen an employer does grant maternity leave, the employer may not deny paternity leave to a male employee for similar purposes, e.g., preparing for or participating in the birth of his child or caring for the newborn. Accommodating female but not male employees constitutes unlawful disparate treatment of males on the basis of sex." EEOC Compliance Manual, Section 626.6 on Paternity Leave.

The Massachusetts Supreme Judicial Court has not as of the date of these Guidelines considered whether the MMLA's requirement of leave for females only violates the Massachusetts Equal Rights Amendment, Article CVI of the Massachusetts Constitution. Given the possibility of a successful challenge to the constitutionality of the MMLA, employers should consider providing leave to all members of their workforce who otherwise meet the eligibility requirements of the MMLA.
IV. When Leave May be Taken, and the Type of Leave Taken

A. When Maternity Leave May be Taken

Maternity leave under the MMLA is available to a female employee either "for the purpose of giving birth" or to adopt a child. Thus, it is available at the time of the birth or adoption, but not substantially earlier or substantially later.

B. Paid or Unpaid Leave and Entitlement to Benefits

The MMLA does not require that leave be paid or that maternity leave be included in the computation of benefits, rights and advantages incident to employment, or that an employer pay for the costs of any benefits, plans or programs during the maternity leave. [3]

An employee may, however, be entitled to receive pay or benefits during her maternity leave pursuant to a collective bargaining agreement, company policy, employment contract or other agreement with the employer. In addition, if an employer generally provides pay, benefits or the costs of such benefits to employees on non-MMLA leaves of absence, the employer must provide the same such pay, benefits or costs to employees on MMLA leave. For example, if an employer generally provides pay to employees who are on extended sick leave, the employer must provide pay to employees on maternity leave.


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Good luck!

Sincerely,

Dimitry Alexander Kaplun, Esq.