HOUSE DOCKET, NO. 736        FILED ON: 1/14/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1769

The Commonwealth of Massachusetts

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PRESENTED BY:

Ellen Story and Joan B.  Lovely

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing the Massachusetts pregnant workers fairness act.

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PETITION OF:

HOUSE DOCKET, NO. 736        FILED ON: 1/14/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1769

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act establishing the Massachusetts pregnant workers fairness act.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 4 of chapter 151B of the General Laws is hereby amended by striking out, in line 5, the word “or” and inserting, in line 6, after the words “ancestry of any individual”, the following words:-

or pregnancy, childbirth, or a related condition, including, but not limited to, the need to express breast milk for a nursing child.

SECTION 2. Said section 4 is hereby amended by inserting after subsection 1D the following subsection:-

1E. (a) For an employer to deny reasonable accommodations for any condition of a job applicant or employee related to pregnancy, childbirth, or related conditions if the employee or applicant so requests, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business. It shall also be an unlawful practice under this subsection to:

(1) take adverse action against an employee who requests or uses an accommodation in terms, conditions or privileges of employment, including, but not limited to, failing to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits when her need for reasonable accommodations ceases;

(2) deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known conditions related to the pregnancy, childbirth, or related conditions of the applicant or employee;

(3) require a job applicant or employee affected by pregnancy, childbirth, or related conditions to accept an accommodation that such applicant or employee chooses not to accept;

(4) require an employee to take leave if another reasonable accommodation can be provided to the known conditions related to the pregnancy, childbirth, or related conditions of an employee without undue hardship to the employer;

(5) make pre-employment inquiry of any condition of a job applicant related to pregnancy, childbirth, or a related condition.

(b) For the purposes of this subsection:

(1) The term “reasonable accommodations” shall include, but not be limited to: more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modified work schedules; provided, that no employer shall be required by this subsection to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so to accommodate other classes of employees who need it.

(2) The term “related conditions” shall include, but not be limited to, lactation or the need to express breast milk for a nursing child.

(3) The term “undue hardship”, shall mean an action requiring significant difficulty or expense.  The employer shall have the burden of proving undue hardship.  In making a determination of undue hardship, factors to be considered include:

(i) the nature and cost of the accommodation;

(ii) the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of employees, and the number, type, and location of its facilities;

(iii) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

(c) The fact that the employer provides or would be required to provide a similar accommodation to other classes of employees who need it shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.

(d) The employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.

(e) Written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related conditions, including the right to reasonable accommodations for conditions related to pregnancy, childbirth, or related conditions, pursuant to this subsection must be conspicuously posted at an employer's place of business in an area accessible to employees.  Such notice must also be provided to:

(1) new employees at the commencement of employment;

(2) existing employees within 120 days after the effective date of the law that added this subsection;

(3) any employee who notifies the employer of her pregnancy within 10 days of such notification.

(f) The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this subsection.

(g) This subsection shall not be construed to preempt, limit, diminish or otherwise affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage for pregnancy, childbirth, or a condition related to pregnancy or childbirth under section 105D of chapter 149, or any other special or general law.