New Pregnancy Law Takes Effect April 1; Employers should have Written Policies in Place by Now

Effective on April 1, 2018, Massachusetts will institute its new pregnancy statute. The law brings broad new protections for pregnant employees, some of which benefit women after a child is born, and imposes important obligations on employers. Among them is a written pregnancy policy, which all employers should have already put into place.

The Pregnant Workers Fairness Act was signed last summer by Gov. Charlie Baker. It generally requires employers to treat pregnant employees in the same manner as disabled workers. This includes obligations to implement reasonable workplace accommodations and engage pregnant women for purposes of identifying modifications that will allow them to remain on the job. The specific commands of the new pregnancy law instruct employers to do the following.

  • Provide private, non-bathroom space for lactating mothers.
  • Allow extra leave time as needed beyond the 8 or 12 weeks required by current law for mothers to recover from the effects of childbirth.
  • Restore women to their prior or an equivalent job, with no loss of benefits, when the need for an accommodation ends.
  • Do not penalize women by denying them opportunities based on accommodations for pregnancy or lactation.
  • Do not force pregnant or lactating women to accept accommodations they do not want, unless it’s necessary to allow a woman to perform the essential functions of her job.
  • Do not require women to take a leave of absence for pregnancy or lactation unless it’s required to avoid undue hardship on the employer.
  • Do not refuse to hire an otherwise qualified woman due to her pregnancy or related needs.

Written employer policies should cover these issues as they generally inform employees about their rights under the Pregnant Workers Fairness Act. It makes sense for employers to review hiring and other practices to ensure that the rights of pregnant employees are not inadvertently infringed. Training is likely wise for certain employers, particularly larger ones. Penalties for violating the new pregnancy law can be steep and include lost wages, emotional damages and legal fees incurred by affected employees.

2018 Ballot Question Proposes up to 26 Weeks of Paid Family and Medical Leave to Massachusetts Employees

If a coalition group called Raise Up Massachusetts gets its way, the Commonwealth will soon have a comprehensive new law that provides paid leave to employees for a variety of personal reasons. At the recent deadline for 2018 ballot questions, Raise Up submitted a voter-supported initiative it calls a Family and Medical Leave law. If approved at the polls next November, the new law will provide up to 26 weeks of paid leave annually to Massachusetts employees.

The ballot question divides paid leave into two general categories – “family” and “medical.” Under the former, employees will be entitled to up to 16 weeks of paid family leave each year to care for ill family members, bond with their children, or address military-related emergencies. They’ll be allowed up to 26 weeks to care for a covered service member, as that term is defined by the proposed law. For an employee’s own health condition, he/she will be allowed up to 26 weeks under the medical leave portion of the proposed new law. An employee who uses either family or medical leave will generally need to be restored to the same or a similar job without losing pay or other benefits. Pay will be capped at $1,000 per week.

Wage payments will not come directly from employers under the proposed Family and Medical Leave Law. Instead, a new agency called the Department of Family and Medical Leave will be created to collect employer contributions equal to .63% of employee and independent contractor payrolls. Half of the amount paid by employers can be recouped from workers. The Department of Family and Medical Leave will create regulations to implement and administer the new law. It will make eligibility decisions, pay benefits, and adjust contribution rates periodically as needed.

If voted into law next November, the Family and Medical Leave Law will take effect 18 months later. Contributions to the trust fund, however, will begin on July 1, 2019, roughly a year before the law takes hold. As with other employment laws, the proposed statute bars retaliation against employees who take advantage of its benefits. Any negative change to the terms and conditions of employment within six months of using paid leave will be presumptively retaliatory. Punishment can include up to three times the amount of any lost wages, damages as may be incurred, and reimbursement of legal fees.