5.01 Applicability

Rules 5.01 through 5.11 are administered in accordance with regulations issued by the U.S. Department of Labor under the authority of the Family and Medical Leave Act (FMLA) of 1993, and applicable state law. The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12 months for the following reasons. The Commonwealth of Massachusetts provides for its full-time and part-time employees an unpaid leave of absence of up to 26 weeks for those same reasons:

Birth and care of the employee's child or placement for adoption or foster care of a child with an employee;
To care for an immediate family member (spouse, child, parent) who has a serious health condition; or
For the employee's own serious health condition.

In order to be eligible for this leave, the employee must have completed his or her probationary period or, if there is no probationary period, must have been employed for three consecutive months.

An employee is not entitled to more than 26 weeks of family and medical leave combined (including non-FMLA leave, Sections 5.12 to 5.15) in a 12-month period. For this purpose, a rolling 12 month period will be used, measured backward from the date of commencement of the leave.

Refer to Rule 15.00 for information on the Adoption Assistance Program.

5.02 Use of Family or Medical Leave

Family Leave

An Appointing Authority shall grant to a full-time or part-time employee who has completed his/her probationary period or, if there is no probationary period, who has been employed for at least 3 consecutive months, an unpaid leave of absence for up to 26 weeks in conjunction with the birth, adoption or foster placement of a child as long as the leave concludes within 12 months following the date of the birth, adoption or foster placement. During family leave taken in conjunction with the birth, adoption or foster placement of a child, an employee shall receive his/her regular salary for 10 days of said leave, at a time requested by the employee. These 10 days of paid leave may be used on an intermittent basis over the 12 months following the birth, adoption or placement, except that the leave may not be charged in increments of less than one day. The 30 days of parental sick leave an employee may take for the birth or adoption of a child (Rule 4.07) is in addition to these 10 days of paid family leave.

Medical Leave

5.03 Eligible Employees Who Are Married to One Another

Where an eligible full-time or part-time employee and his/her eligible spouse are both employees of the Commonwealth, they may jointly be granted a total of not more than 26 weeks of unpaid leave to care for the employee's parent with a serious medical condition; or in conjunction with the birth, adoption or foster placement of a child as long as the leave(s) conclude(s) within 12 months following the birth, adoption or foster placement. If the leave is requested because of the illness of a child or of the other spouse, each spouse is entitled to 26 weeks of unpaid leave. The female is entitled to up to 8 of those combined 26 weeks under M.G.L. c. 149, Section 105D for maternity or adoption purposes.

Where an eligible full-time or part-time employee and his/her spouse both use a portion of the total 26 weeks FMLA to care for an employee's parent with a serious medical condition or in conjunction with the birth, adoption or foster placement of a child, the spouses would each be entitled to the difference between the amount he/she has taken individually and 26 weeks for FMLA leave in order to care for the spouse or child of the employee if such spouse or child has a serious health condition or because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

Of the combined total of 26 weeks provided in the first paragraph above, a total of not more than 10 days shall be paid to each employee under the Family Leave provisions of Section 5.02 of these Rules, with the remainder unpaid, except that the employee may use such credits for which he/she may otherwise be eligible under the sick leave, personal leave or vacation leave sections of these Rules.

5.04 Notice Requirements for Family and Medical Leave

At least 30 days in advance, the employee shall submit to the Appointing Authority a written notice of his/her intent to take family or medical leave and the dates and expected duration of the leave. If 30 days notice is not possible, the employee shall give notice as soon as practicable. The employee shall provide upon request by the Appointing Authority proof of the birth, placement or adoption of a child.

5.05 Continuation of Benefits During Family Leave

Employees taking an unpaid leave of absence under Section 5.02(A) will accumulate sick and vacation leave benefits only for the first 8 weeks of such unpaid leave. The period of family leave granted under these rules shall not affect the employee’s right to receive any benefits for which the employee was eligible at the start of his/her leave.

5.06 Satisfactory Evidence for Family and Medical Leave

The employee shall provide upon request by the Appointing Authority, satisfactory medical evidence, which is defined as:

In the case of the employee’s illness, a signed statement by a licensed physician, physician’s assistant, nurse practitioner, chiropractor or dentist stating that he/she has personally examined the employee, explaining the nature of the illness or injury (unless identified as being of a confidential nature), and stating that the employee was unable to perform his/her duties due to the specific illness or injury on the days in question.
In the case of illness of spouse, child or parent, a signed statement by a medical provider as defined above indicating that the person in question has been determined to be seriously ill and needing care on the days in question.

The statement shall be on the letterhead of the attending physician or medical provider or adoption/foster placement agency, and shall list an address and phone number. If the Appointing Authority has reason to doubt the validity of the medical evidence, the Appointing Authority may obtain a second opinion at his/her own expense. If there is a conflict between the second opinion and the original medical statement, the Appointing Authority and the employee may resolve the conflict by obtaining the opinion of a third medical provider, who is approved jointly by the Appointing Authority and the employee, at the Appointing Authority’s expense. This requirement does not apply to the birth or adoption of a child.

5.07 Intermittent Leave and Modified Work Schedules

Intermittent leave usage and modified work schedules may be granted when a spouse, child or parent has a serious medical condition and is dependent upon the employee for care. When such changes to the work schedule are medically necessary, the employee and the Appointing Authority shall attempt to work out a schedule that meets the needs of the employee without unduly disrupting the operations of the workplace.

5.08 Use of Paid Leave to Offset Unpaid Family or Medical Leave

Of the combined total of 26 weeks provided for in this section, a combined total of not more than 10 days shall be paid, with the remainder unpaid, except that if the employee has accumulated sick leave, vacation leave or other personal leave credits, the employee may use such credits for which he/she may be eligible under the applicable rules.

5.09 Payment for Holiday During Family or Medical Leave

Between periods of unpaid family or medical leave, if an employee returns to work for a period of less than two weeks, and if a holiday occurs during that return to work, no holiday pay or compensatory time shall be granted for that holiday.

5.10 Continuation of Group Insurance Benefits During Family or Medical Leave

Employees are entitled to the same group health insurance coverage and benefits that they received at the start of their unpaid leaves, for the entire 26 weeks of unpaid leave, unless prohibited by law.

5.11 Reemployment Rights under Family and Medical Leave

At the expiration of family or medical leave, the employee shall be returned to the same or equivalent position with the same status, pay and length of service credit as of the start of his/her leave. If during the period of the leave, employees in an equivalent position have been laid off through no fault of their own, the employee will be extended the same rights or benefits, if any, extended to employees of equal length of service in the equivalent position in the department.

5.12 Non-FMLA Family Leave

Non-FMLA Family Leave in Rules 5.12 through 5.16 shall refer to rules of the Personnel Administrator governing leave for care of family members that does not come under the jurisdiction of the Family and Medical Leave Act.

An Appointing Authority may grant to a full or regular part-time employee who has completed his/her probationary period or, if there is no probationary period, who has been employed for at least 3 consecutive months, an unpaid leave of absence of up to 10 weeks in order to care for, or to make arrangements for the care of a grandparent, a grandchild, a sister or brother living in the same household, or a child (whether or not the child is the natural, adoptive, foster, stepchild or child under legal guardianship of the employee).

5.13 Notice Requirement for Non-FMLA Family Leave

The employee shall give at least 2 weeks’ prior notice of his/her anticipated date of departure and notice of his/her intention to return to work, at the time of making the request for non-FMLA family leave.

5.14 Intermittent Non-FMLA Family Leave

Ten days of non-FMLA family leave may be taken in not less than one-day increments, with prior approval of the Appointing Authority.

5.15 Use of Paid Leave to Offset Unpaid Non-FMLA Family Leave

If an employee has accumulated sick, personal, or vacation credits at the commencement of his/her family or medical leave, the employee may use such credits for which he/she may be eligible under the applicable rules (Rules 2.0, 3.0 and 4.0).

5.16 Payment for Holiday During Non-FMLA Family Leave

Between periods of unpaid Non-FMLA family leave, if an employee returns to work for a period of less than 2 weeks, and if a holiday occurs during that return to work, no holiday pay or compensatory time shall be granted for that holiday.