SENATE DOCKET, NO. 338        FILED ON: 1/13/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1023

The Commonwealth of Massachusetts

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PRESENTED BY:

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:

SENATE DOCKET, NO. 338        FILED ON: 1/13/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1023

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 an 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.