On July 27, 2017, the Governor of Massachusetts signed Massachusetts House Bill 3680, a pregnancy accommodation law (referred to here as the “Massachusetts Pregnant Workers Fairness Act”). Effective April 1, 2018 , the law adds protection for employees experiencing pregnancy or related health conditions.
- Employee Eligibility: All employees are eligible.
- Covered Employers: All employers with 6 or more employees are covered.
- Covered Relationships: The new provisions apply only to employees who are experiencing pregnancy or a pregnancy-related health condition. Spouses or other family members cannot take leave or receive an accommodation under the new law. For ReedGroup purposes, we will focus on an employer’s obligations to employees under this law.
- Reasons for Accommodations, Including Leave or Time Off: Employers must provide reasonable accommodations for an employee’s pregnancy or any condition related to the employee’s pregnancy.
- Types of Accommodations: Reasonable accommodation includes, but is not limited to:
- time off to recover from childbirth with or without pay;
- modified work schedules;
- non-leave-related accommodations:
- more frequent or longer paid or unpaid breaks;
- acquisition or modification of equipment or seating;
- temporary transfer to a less strenuous or hazardous position;
- job restructuring;
- light duty;
- private non-bathroom space for expressing breast milk; or
- assistance with manual labor.
Employers should consider requests for accommodations on a case-by-case basis, utilizing an interactive process to determine whether a requested accommodation is reasonable and would allow the employee to perform her job.
- Length of Leave: The length of leave is for an unspecified duration, i.e., a reasonable amount of time given the employee’s condition.
- Form of Leave: The form of leave – continuous, reduced schedule, or intermittent – is not specified but likely all would be allowed when necessitated by the reason for leave and the circumstances.
- Job Protection and Benefits: An employer cannot, as a result of an employee’s request for or use of a reasonable accommodation, take adverse action in the terms, conditions, or privileges of employment, or deny employment opportunities to the employee.
- Coordination With the FMLA and the Massachusetts Parenting Leave: The new law doesn’t prohibit leave as an accommodation running concurrently with the federal Family and Medical Leave Act (FMLA). If the employee is eligible for, and the leave reason qualifies under, the FMLA, the absence should run concurrently.
Because Massachusetts Parenting Leave is primarily intended for preparing for and bonding with a new child, and not for the health conditions related to pregnancy, Massachusetts Pregnant Workers Fairness Act leave will generally not run concurrently with Massachusetts Parenting Leave. However, the Massachusetts Commission Against Discrimination (MCAD) interprets the Massachusetts Parenting Leave as covering preparation for and participation in birth or adoption. MCAD considers this leave available at the time of the birth or adoption, not substantially earlier or substantially later. It’s possible that in some circumstances, these activities could overlap briefly with the leave reasons under the Massachusetts Pregnant Workers Fairness Act. In that case, the leaves would run concurrently.
- Use of PTO: Not specified.
- Employer Hardship: The term “undue hardship” means an action requiring significant difficulty or expense. The employer has the burden of proving undue hardship. In making a determination of undue hardship, the following factors must be considered:
- the nature and cost of the accommodation needed;
- the overall financial resources of the employer;
- the overall size of the business of the employer with respect to the number of employees;
- the number, type, and location of its facilities; and
- the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.
- Employee Notice: The law contains no timing requirements for the employee’s request for accommodation.
- Employer notice: Employers must distribute, via handbook or other means, written notice of an employee’s right to be free from discrimination, including the right to reasonable accommodation, in relation to pregnancy or a related condition including, but not limited to, lactation, or the need to express breast milk for a nursing child, to:
- new employees at the commencement of employment;
- existing employees on or before January 1, 2018; and
- an employee who notifies the employer of pregnancy or a related condition including, but not limited to, lactation, or the need to express breast milk for a nursing child, within 10 days of such notification.
- Certification/Documentation: An employer can require that the employee provide documentation about the need for a reasonable accommodation from an appropriate health care or rehabilitation professional, except for the following accommodations:
- more frequent restroom, food, and water breaks;
- seating; and
- limits on lifting over 20 pounds.
What Employers Must Do Now
Massachusetts employers are responsible for compliance with this law upon its effective date, April 1, 2018. Employers should:
- Review and, if necessary, update any policies, handbooks, and notices to include pregnancy accommodation and leave as an accommodation;
- Train appropriate personnel (Human Resources, Benefits, etc.) on how to manage accommodation requests; and
- Train supervisors and managers on Massachusetts’ pregnancy accommodations so they can help spot covered absences or accommodation requests and enlist HR assistance in the interactive process.
What ReedGroup Is Doing
If you are using ReedGroup’s leave management services or software, we are:
- Updating LeavePro software to encompass the new law;
- Training staff and updating scripts; and
- Incorporating Massachusetts into our multistate Pregnancy Accommodation law chapter in Leave Advisor™.