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.
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