Pregnancy/Pregnancy Loss

Staying healthy at work while you are pregnant is sometimes challenging: you may be dealing with morning sickness, back pain, or doctor’s appointments every few weeks. For women who have suffered a miscarriage, you may need time off for recovery. U.S., Massachusetts, and local laws can help you stay healthy at work, give you time off when you need it, and protect you from pregnancy discrimination.

You have the right to be free from pregnancy discrimination at work.

• The Pregnancy Discrimination Act makes it illegal for any employer in the U.S. with 15 or more workers to treat employees unfairly because they are pregnant, trying to get pregnant, or have experienced a pregnancy loss. That means:
  • Your boss can’t fire you or cut your hours when she finds out that you’re pregnant or trying to get pregnant—you have the right to keep working as long as you can still do your job. You also have the right to be free from harassment at work because you are pregnant.
  • You cannot be asked about your pregnancy or plans to have children in a job interview.
  • Your employer can’t treat you differently from other workers just because you are pregnant or have had a miscarriage. The Supreme Court just decided a case where they clarified what this means. The Court said that employers may not put a “significant burden” on pregnant employees. How do you know what’s a significant burden? Start looking around at how your employer treats other non-pregnant employees who have needed an accommodation at work. For example, does your employer have a policy of giving light duty only to those with on-the-job injuries? Or did they have no problem helping out folks with non-pregnancy related disabilities, but sent all the pregnant women out onto unpaid leave? If so, this could be evidence of pregnancy discrimination. Since we are still waiting for further clarification of how this standard works, it’s best to collect all the evidence you can (policies, employee handbooks or manuals, digging around to find out how others have been treated) and to discuss your particular situation with an attorney.
• The Massachusetts Fair Employment Practices Act also bans pregnancy discrimination, and covers most employers with 6 or more employees.

If you need changes at work to stay healthy on the job, the laws below can help. In addition, click the green button to learn how to talk with your boss about your pregnancy and request an accommodation if you need one.

• If you work for an employer with six or more employees in Massachusetts, you have the right to receive reasonable accommodations under the Massachusetts Pregnant Workers Fairness Act for a condition related to pregnancy, including lactation or the need to express breast milk for a nursing child. Employers may only deny your request for a reasonable accommodation if the accommodation would be very difficult or expensive (an “undue hardship”) for them.
  • Under the law, reasonable accommodations can include frequent or longer paid or unpaid breaks; time off to attend to a pregnancy complication or recover from childbirth with or without pay, acquisition or modification of equipment or seating; temporary transfer to a less strenuous or hazardous position; job restructuring; light duty; private non-bathroom space for expressing breast milk; assistance with manual labor; or a modified work schedule.
  • Your employer can’t punish you for requesting or using an accommodation, or force you to accept an unnecessary accommodation, or force you to take leave if a reasonable accommodation can be provided.
  • Your employer is allowed to require that you submit documentation confirming the need for the accommodation but may not require documentation if you’re requesting more frequent restroom, food, or water breaks; seating; limits on lifting over 20 pounds; or private non-bathroom space for expressing breast milk.
  • For more information about the law, see here and here.
• If you are not covered by Massachusetts’s “reasonable accommodations” law (for example, if you work out of state), there is also the Americans with Disabilities Act, which makes it illegal for employers in the U.S. with 15 or more employees to discriminate against disabled workers.  Some pregnancy-related conditions, such as preeclampsia or gestational diabetes, are considered disabilities under the law. This means:
  • Your boss cannot fire you, refuse to give you a promotion, or harass you because you have a pregnancy-related disability.
  • If you have a pregnancy-related disability, your boss cannot refuse to give you small changes at work that you need to stay healthy, like breaks to take medication, temporary relief from heavy lifting, or a stool to sit on during your shift. These changes are called “reasonable accommodations” and are available as long as you can still complete the basic duties of your job with those changes.  Your boss does not have to give you an accommodation that would be very difficult or expensive, like building a whole new office.
  • Although pregnancy, by itself, is not considered a “disability,” some conditions of pregnancy may be disabilities so check with a lawyer to see whether you have a right to an accommodation at work.
• The Massachusetts Fair Employment Practices Act also bans disability discrimination, and covers employers with 6 or more employees. All workers except for domestic workers are covered.
• If you are covered by the Family and Medical Leave Act, you have the right to take time off during pregnancy or after experiencing a miscarriage without losing your job. See the “Leaving Work for Childbirth and Bonding” section under the next tab for more information or see this guide to your workplace rights around miscarriage.

Leaving Work for Childbirth & Bonding

The U.S. is one of the only countries in the world with no national law guaranteeing women the right to paid leave for childbirth. However, you may have the right to unpaid leave during pregnancy, childbirth, and to bond with a new child.

* In 2018, Massachusetts passed a generous paid family and medical leave law. Benefits begin on January 1, 2021, except for benefits for family caregiving, which will begin on July 1, 2021.

The law may protect your job while you are taking leave due to pregnancy, childbirth, or to bond with a new child (including adopted and foster children).

• If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year for a family health emergency or to take care of a new baby— without losing your job (or your health insurance, if you have it).
  • Only about half of all private sector workers in the U.S. are covered by the law! You must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
  • If you are covered, you can use the 12 weeks to care for your own health (including pregnancy), to care for a new child after birth, adoption, or foster placement, or to care for a seriously ill family member. Remember that you only get 12 weeks a year in total—if you take time off before you give birth for your own health needs, you’ll have less time afterward to spend with your baby.
  • Before giving birth, you may use your leave an hour or day at a time—such as by taking a day off per week to go to the doctor— rather than all at once. Your employer must approve, however, if you want to use leave time in smaller chunks to bond with your baby.
  • While you are on leave, you have the right to keep your benefits. When you return to work, you have the right to return to the same or a similar job.
  • If you are in the top 10% of highest-paid workers in your company, different rules apply.
• The Massachusetts Maternity Leave Act (MMLA) is very similar to the FMLA, but it only provides leave for birth or adoption.
  • The law applies to much smaller workplaces than the FMLA; most workplaces with 6 or more employees are covered.
  • You are covered if you have worked full-time for the same employer for at least 3 months.
  • If you are covered, you have a right to up to 8 weeks of maternity leave to give birth or adopt a child. You have to give at least 2 weeks (or as soon as practicable) notice to your employer.
  • Fathers and adoptive parents are also entitled to 8 weeks of parental leave.
• If your boss treats workers who take time off for childbirth differently from workers who take time off for other medical treatments (for example, she provides paid leave for workers recovering from surgery, but only unpaid leave for postpartum mothers), this could be illegal under the national Pregnancy Discrimination Act and Massachusetts discrimination laws. Call A Better Balance if you think you are being treated unfairly.

Returning to Work: Recovery, Nursing, and Sick Time

When you return to work as a new parent, you may still need a few extra breaks to pump breastmilk or time off to care for your baby when he’s sick. There are a few laws that can help you get back to work safely and still care for your family.

• If you are disabled for a period of time after childbirth, the Americans with Disabilities Act and state disability laws, discussed in the “While You’re Pregnant” tab, may apply.
  • If so, you may be able to get an accommodation at work, such as light duty, while you recover.

• The Affordable Care Act (“Obamacare”) gives some U.S. workers the right to take unpaid breaks at work to pump milk, and requires some employers to find a clean, private place that’s not a bathroom for employees to pump milk. This law only applies to workers and employers who are covered by the Fair Labor Standards Act (FLSA)— the law that sets minimum wage and overtime requirements.
• It may be illegal under the Pregnancy Discrimination Act for your boss to punish or discriminate against you because you are lactating.
• Under Massachusetts law, you have the right to Breastfeed Your Child in any public location, not including churches and other houses of worship or religious instruction.
• For more information about your nursing rights, click here.

As a new parent, you may face discrimination at work or have problems taking time off when you or your baby is sick. These laws can help you balance your job and caring for your family.

• If you are covered by the FMLA, you have the right to take time off to care for a seriously ill family member. See the “Leaving Work for Childbirth and Bonding” section above for more information on this law.
• In 2014, Massachusetts passed the third statewide Paid Sick Leave law, which is now in effect. Under the law, most workers at employers with more than 10 employees will have the right to take up to 40 hours of paid sick time per year.  Workers at employers with fewer than 11 employees can take up to 40 hours of unpaid sick time per year.  Workers earn this time at the rate of 1 hour of sick time for every 30 hours worked. Sick time can be used to care for your own or your family’s medical needs, including parents, spouses, children, and in-laws. It can also be used for workers who need time off for reasons related to domestic violence or assault.
• To see if you are the type of worker that is covered by the law, you can read more about the paid sick time law here.
• The Small Necessities Leave Act gives some Massachusetts workers the right to take time off to attend their children’s school activities, or take a relative to routine medical appointments.
• • You are covered if 1) your workplace has 50 or more employees, 2) you have worked there for at least 1 year, and 3) you have worked at least 1,250 hours in the past year (i.e., you must meet the requirements of the FMLA).
  • If you are covered, you can take up to 24 hours of leave per year to participate in your child’s school activities or take a child or elderly relative to the doctor.
  • If your leave is foreseeable, you have to give 7 days notice to your employer.
• Some workers in Massachusetts are protected from Caregiver Discrimination. If you work in Boston, for example, it is illegal for employers to discriminate against parents. There are other localities in Massachusetts that provide protections as well. Check the link for the full list.
• The Americans with Disabilities Act also bans unfair treatment of workers based on their relationship with a disabled person. For example, your boss can’t cut your hours because he thinks you can’t work as hard because you have a child with asthma. However this law does not give relatives of a disabled person the right to accommodations, such as a schedule change, to help them provide care.