Pregnancy Related Discrimination Issues

The Family Medical Leave Act (FMLA) and the Massachusetts Maternity Leave Act (MMLA)

  • Sex Discrimination Issues Arising Under M.G.L. c. 151B

    Pregnancy and childbirth are sex-linked characteristics, and any actions of an employer that adversely affects an employee because of her pregnancy, childbirth, or the requirement of a maternity leave may also amount to sex discrimination under M.G.L. c. 151B. Employers may not treat employees and applicants who are affected by pregnancy or related conditions less favorably than others. This is disparate treatment that may constitute sex discrimination.

    An employer may not deny a woman the right to work or restrict her job functions, such as heavy lifting or travel, during or after pregnancy or childbirth when the employee is physically able to perform the necessary functions of her job. The mere fact of pregnancy does not automatically establish a disqualifying disability. Therefore, an employer may not use a woman’s pregnancy, childbirth or potential or actual use of The Massachusetts Maternity Leave Act leave as a reason for an adverse job action.

    Normal pregnancy and related short-term medical conditions may, at some point, incapacitate a woman from performing her usual work for a short period of time. In some circumstances these short-term conditions may rise to the level of a disability under Chapter 151B. Whether or not an employee’s short-term condition rises to the level of a disability, an employer must treat such employees in the same manner as it treats employees who are temporarily incapacitated or disabled for other medical reasons. When an employee is unable to perform some or all of the functions of her job, such as heavy lifting, because of pregnancy or a related condition, an employer must offer her the opportunity to perform modified tasks, alternative assignments or a transfer to another available position if the employer offers such opportunities to employees who are temporarily disabled for other reasons. Failure to do so may constitute sex discrimination. Employers may not adopt policies that limit or preclude women from performing physical or chemical related job functions just because a woman is of reproductive age or pregnant. Providing maternity leave to female employees and not to males may, in some circumstances, constitute sex discrimination under Chapter 151B, §4(1).

  • Pregnancy-Related Medical Issues as a Disability

    Chapter 151B‘s ban against disability discrimination protects employees who have a pregnancy-related disability. However, a normal, uncomplicated pregnancy will not be considered a handicap/disability even if the employee is unable to work for a period of time due to pregnancy or childbirth. A female employee will be considered a “handicapped person,” if she can show that she has a pregnancy-related physical or mental impairment substantially limiting a major life activity, or that she is regarded as having, or has, a history of such impairment. In that case, the employee has the same protections under Chapter 151B as other disabled employees.

  • The Massachusetts Maternity Leave Act (MMLA) Provides Unpaid Leave to Certain Qualified Employees

    Under the MMLA an employer must grant eight weeks of maternity leave to an eligible female employee regardless of whether the employee is incapacitated from working or is a “handicapped person” as defined by Chapter 151B, § 1 during such period. If the employee is disabled at the expiration of her maternity leave, however, the employer may have an obligation, pursuant toChapter 151B, to provide a reasonable accommodation to her disability. In some circumstances additional leave may constitute such reasonable accommodation.

    An employer may not require a pregnant employee to take maternity leave based on the fact that the employee is pregnant. Nor may an employer require an employee to remain out of work for a fixed period of time before or after the birth of a child. The MMLA provides eight weeks of unpaid, job-protected leave to full-time female employees who have completed their initial probationary period and it requires employers to restore a female employee who takes no more than eight weeks of leave for the purposes of giving birth or adoption to her previous or similar position with the same status, pay, length of service credit, and seniority. MCAD guidelines states that the MMLA requires that the position must have the same status, pay, length of service credit and seniority as the position the employee held prior to the leave. If an employee’s job was changed temporarily because of her pregnancy prior to leave (e.g., her hours were reduced or her duties were changed as an accommodation) she should be restored to the same or similar position held prior to such temporary change. For status, MCAD considers title, reporting relationships, any demotion, change of responsibilities, and other factors. Concerning pay, MCAD considers the following: salary, wages, bonuses, commissions, vacations and benefits.

    An employer is not required to restore an employee on maternity leave to her previous or a similar position if other employees of equal length of service credit and status in the same or similar positions have been laid off due to economic conditions or due to other changes in operating conditions.

  • Interrelationship of the MMLA and the FMLA

    As described above, the MMLA requires covered Massachusetts employers to provide no fewer than eight weeks (per child) of unpaid leave to eligible female employees for the purpose of giving birth or for adopting a child under the age of 18 (or under the age of 23 if the child is disabled).

    Employees also may be entitled to leave under the Family and Medical Leave Act (“FMLA”), a federal law enforced by the United States Department of Labor, Wage and Hour Division, that applies to employers with 50 or more employees. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave during a 12-month period to an eligible female or male employee who needs leave: (1) for a serious health condition of the employee which renders him/her unable to perform the functions of his/her job; (2) to care for certain family members who have a serious health condition; or (3) to care for a newborn, adopted or foster child.

    In certain instances, the MMLA and FMLA will overlap. Where leave is taken for a reason specified in both the FMLA and MMLA, the leave may be counted simultaneously against the employee’s entitlement under both laws. For example, a female employee who takes a leave for the purpose of caring for a newborn or adopted child may be covered both by the FMLA and MMLA. In such an instance, provided that all FMLA requirements are met, the employee’s leave may count simultaneously against her 12-week entitlement under FMLA and her 8-week entitlement under the MMLA.

    In other instances, however, the MMLA may entitle an employee to leave in addition to leave taken under the FMLA. The FMLA provides that nothing in the law supersedes any provision of state law that provides greater family or medical leave rights. Thus, for example, if an employee takes 12 weeks of FMLA leave for a purpose other than birth or adoption of a child, she will still have the right to take eight weeks of maternity leave under the MMLA.

    Unlike the FMLA, the MMLA does not require an employer to specifically designate leave as MMLA leave. Thus, if an employee takes leave for an MMLA purpose, such as giving birth, that leave will count towards that employee’s MMLA entitlement whether or not the employer designates it as such. FMLA leave, by contrast, must be specifically designated as such, in writing, in order for that leave to be counted toward that employee’s twelve-week entitlement.

    Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

  • The MCAD and the MMLA

    The MCAD enforces the MMLA. An employee, to initiate a formal action, must file a complaint with the MCAD. The complaint must be filed within 300 days of the alleged violation of the MMLA, subject only to very limited exceptions. A violation of the MMLA constitutes a violation of M.G.L. c. 151B, §4(11A). An aggrieved employee is therefore entitled to the same remedies under the MMLA as are available pursuant to M.G.L. c. 151B.

  • Termination Due to Pregnancy

    Termination or otherwise being treated differently due to pregnancy related medical issues, or just because an employee became pregnant is a form of sex and/or disability discrimination. A normal pregnancy is not usually considered a basis of unusual employment rights, however, look at the FMLA and Small Necessities Acts discussed here.

  • The Small Necessities Leave Act

    The SNLA permits eligible employees to take up to a total of 24 hours of leave within a 12-month period to attend a child’s school activity, accompany a child or elderly relative to a doctor’s appointment, to participate in school activities directly related to the educational advancement of a son or daughter of the employee (such as a parent-teacher conference or interviewing for a new school), to accompany a son or daughter of the employee to routine medical or dental appointments (such as check-ups or vaccinations), and to accompany an elderly relative of the employee to routine medical or dental appointments, or appointments for other professional services relating to the elder’s care (such as interviewing at nursing or group homes).