Mcad Guideline Overturned Others May Be Questionable

As most employers are aware, practically all state and federal agencies responsible for administering and enforcing employment discrimination laws have the authority to issue regulations and guidelines. Generally, courts routinely enforce regulations and guidelines as part of the statutory scheme. There are, however, limits. One of the most important limits is that no guideline or regulation is entitled to enforcement if the guideline or regulation goes beyond the authority granted by the statute.

The Massachusetts Supreme Court recently invalidated a part of the MCAD guidelines issued on the Massachusetts Maternity Leave Act. This is the law which gives female employees who have completed any initial probationary period or have been employed for at least three consecutive months the right to be absent from work for a period of time not to exceed eight weeks for the purpose of giving birth, etc.

The MCAD guideline in question, noting that the statute preserved the right of employers and unions to grant rights greater than those provided for by the law, impose the requirement that if an employer does not intend for full rights (those rights include having the position held open) to apply beyond eight weeks, it is required to provide clear notice to the employee in writing before the leave began.

The court ruled that since the statute only provided for eight weeks of leave, the MCAD had no authority to impose any requirements on employers for anything beyond those eight weeks including a requirement of providing any sort of notice to employees that the employer did not intend to grant rights beyond those eight weeks.

Although the Court s ruling was limited to this issue, employers should be aware there are other provisions of these guidelines that may now be subject to attack.

One of those provisions is the multiple birth rule under which the MCAD has taken the position that a mother is entitled to eight weeks of leave per child. Under this interpretation, a mother of twins gets 16 weeks of leave, while a mother with triplets would get 24 weeks. There is nothing in the statute that expressly (and some would argue impliedly) supports this interpretation.

Likewise, even though the statute specifically refers to females and has been upheld against sex discrimination claims, MCAD also interprets the statute to apply to both men and women. Given this ruling, this interpretation is also subject to question.