['Discrimination']
['Pregnancy Discrimination']
06/11/2024
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Summary of differences between federal and state regulations
Employer defined
The state law covers employers of six or more employees.
“Employer” means one or more individuals, governments, government agencies, political subdivisions, labor organizations, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, or receivers, having six or more employees.
The term “employer” does not include a club exclusively social, or a fraternal association or corporation, if such club, association or corporation is not organized for private profit. Nonprofit clubs, associations, or corporations which are not exclusively social are not excluded.
Unlawful employment practices
The unlawful employment practices and exemptions are similar to those under the federal Pregnancy Discrimination Act. For example, disabilities caused or contributed to by pregnancy or related conditions must be treated the same as any other disability for purposes of leave.
An employee seeking maternity leave must give two weeks notice of her anticipated date of departure and intent to return. “Anticipated” date of departure does not mean “exact” date. For example, an employee who gives birth prior to her anticipated departure date is entitled to start her maternity leave earlier. Likewise, an employee may desire to start her leave later or return from leave earlier than anticipated. It is expected that employers and employees will communicate in good faith with regard to making arrangements for leave, taking into account the uncertainty inherent in delivery and adoption dates and the needs of the employer to plan in advance for an employee’s absence.
Posting
All employers must post a notice in a conspicuous place that contains at least the following information:
PURSUANT TO M.G.L. C. 151B, §4(1) AND C. 149, §105D EVERY FULL-TIME FEMALE EMPLOYEE IS ENTITLED AS A MATTER OF LAW TO AT LEAST EIGHT WEEKS MATERNITY LEAVE IF SHE COMPLIES WITH THE FOLLOWING CONDITIONS:
SHE HAS COMPLETED AN INITIAL PROBATIONARY PERIOD SET BY HER EMPLOYER WHICH DOES NOT EXCEED SIX MONTHS OR, IN THE EVENT THE EMPLOYER DOES NOT UTILIZE A PROBATIONARY PERIOD FOR THE POSITION IN QUESTION, HAS BEEN EMPLOYED FOR AT LEAST THREE CONSECUTIVE MONTHS; AND,
SHE GIVES TWO WEEKS’ NOTICE OF HER EXPECTED DEPARTURE DATE AND NOTICE THAT SHE INTENDS TO RETURN TO HER JOB.
SHE IS ENTITLED TO RETURN TO THE SAME OR A SIMILAR POSITION WITHOUT LOSS OF EMPLOYMENT BENEFITS FOR WHICH SHE WAS ELIGIBLE ON THE DATE HER LEAVE COMMENCED, IF SHE TERMINATES HER MATERNITY LEAVE WITHIN EIGHT WEEKS. (THE GUARANTEE OF A SAME OR SIMILAR POSITION IS SUBJECT TO CERTAIN EXCEPTIONS SPECIFIED IN M.G.L. C. 149, § 105D.). ACCRUED SICK LEAVE BENEFITS SHALL BE PROVIDED FOR MATERNITY LEAVE PURPOSES UNDER THE SAME TERMS AND CONDITIONS WHICH APPLY TO OTHER TEMPORARY MEDICAL DISABILITIES. ANY EMPLOYER POLICY OR COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES FOR GREATER OR ADDITIONAL BENEFITS THAN THOSE OUTLINED IN THIS NOTICE SHALL CONTINUE TO APPLY.
Pregnancy accommodations
Effective 4/1/2018, employers must provide reasonable accommodations to employees for pregnancy and related conditions. This includes lactation or the need to express breast milk for nursing.
Accommodations may include:
- More frequent or longer breaks,
- Time off to recover from childbirth,
- Obtaining or modifying equipment or seating,
- Temporary transfer to a less strenuous or hazardous position,
- Job restructuring,
- Light duty,
- Help with manual labor, and
- Modified work schedules.
You need not provide an accommodation that would require significant difficulty or expense, but you would need to be able to prove this. You may not require a pregnant employee to accept a particular accommodation, including leave, if another would allow the employee to perform her job.
When an employee requests an accommodation, you are to engage in an interactive process to identify effective reasonable accommodations. Accommodation requests are not required to be in any format or fashion. A simple verbal request will suffice. You may request reasonable documentation about the need for an accommodation, except for breaks, seating, limits of lifting over 20 pounds, and a space for expressing breast milk.
Conditions related to pregnancy may occur during or after pregnancy, including morning sickness, lactation, and the need to express breast milk. The law does not specify or limit how often an employee can take a break to express breast milk or to nurse a child. Typically, 15 - 20 minutes is sufficient, but this is an individual consideration. If you provide paid breaks to employees, you must allow the employee to use those paid breaks for this purpose. You may not take a negative action against an employee because of her need for such breaks. If, for example, you generally allow employees to take breaks without loss of pay, you must not reduce the pay of an employee who takes breaks to express breast milk.
Notice of the anti-discrimination rights must be in a handbook or given to new employees upon hire and to existing employees on or before 4/1/18, and to employees who request an accommodation. As part of the anti-discrimination provision, you may not refuse to hire a pregnant applicant or one with a pregnancy-related condition, as long as the applicant can perform the job with a reasonable accommodation.
State
Contact
Massachusetts Commission Against Discrimination
Regulations
Massachusetts General Laws Chapter 149, Section 105D, Entitlement of female employees; rights and benefits
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section105d
Parental Leave Guidelines
www.mass.gov/mcad/docs/parental-leave-fact-sheet.pdf
Massachusetts General Laws Chapter 151B, Section 4, Unlawful practices (pregnancy accommodations)
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151B/Section4
Federal
Contact
Equal Employment Opportunity Commission (EEOC)
Regulations
Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
29 CFR Parts 1604.10, Employment policies relating to pregnancy and childbirth.
Appendix A to Part 1604, Questions and Answers on the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
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