HOUSE DOCKET, NO. 955        FILED ON: 1/18/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1038

The Commonwealth of Massachusetts

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PRESENTED BY:

David M. Rogers

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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. 955        FILED ON: 1/18/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1038

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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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, 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 an employee related to pregnancy or related conditions if the employee 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 a reasonable

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 employee, if such denial is based on the

need of the employer to make reasonable accommodations to the known conditions

related to the pregnancy or related conditions of the employee;

(3) require an employee affected by pregnancy or related conditions to accept an

accommodation that such employee chooses not to accept, if such an accommodation is

unnecessary to enable the employee to perform the essential functions of her job;

(4) require an employee to take leave if another reasonable accommodation can

be provided to the known conditions related to the pregnancy or related conditions of an

employee without undue hardship to the employer;

(5) refuse to hire a person who is affected by pregnancy or a related condition,

capable of performing the essential functions of the position involved with reasonable

accommodation, unless the employer can demonstrate that the accommodation would

impose an undue hardship on the employer’s program, enterprise or business.

(b) For the purposes of this subsection:

(1) The term “reasonable accommodations” may include, but not be limited to:

more frequent or longer paid or unpaid breaks, time off to recover from childbirth with or

without pay, 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; and provided further, that no employer shall be required to

discharge any employee, transfer any employee with more seniority, or promote any

employee who is not qualified to perform the job. An employee not able to perform the

essential functions, with or without reasonable accommodation may be considered not

"qualified".

(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.

(d) The employer and employee shall engage in a timely, good faith, and

interactive process to determine effective reasonable accommodations to enable the

employee to perform the essential functions of the employee’s job. An employer may

require that the documentation about the need for reasonable accommodation come from

an appropriate health care or rehabilitation professional. An employee shall not be

required to obtain documentation from an appropriate health care or rehabilitation

professional for the following accommodations: (1) more frequent restroom, food, and

water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The appropriate professional in any particular situation will depend on the issue

related to pregnancy or related condition and the type of functional limitation it imposes

including duration. Appropriate professionals include, but are not limited to, doctors

(including psychiatrists), psychologists, nurses, physical therapists, occupational

therapists, speech therapists, vocational rehabilitation specialists, midwives, lactation

consultants, and licensed mental health professionals. An employer may require

documentation for any extension of the accommodation beyond the originally agreed to

accommodation. In requesting documentation, employers should specify what types of

information they are seeking regarding the accommodation, its functional limitations, and

the need for reasonable accommodation. The individual can be asked to sign a limited

release allowing the employer to submit a list of specific questions to the health care or

vocational professional.

(e) Written notice of the right to be free from discrimination in relation to

pregnancy and related conditions, including the right to reasonable accommodations for

conditions related to pregnancy or related conditions, pursuant to this subsection shall be

distributed in a handbook or other means 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, and employment

agencies, 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 or a condition related to pregnancy

under section 105D of chapter 149, or any other special or general law.