Last updated May, 2020
The short answer is no. You cannot be fired for being pregnant under most circumstances. The Family and Medical Leave Act (FMLA) and the federal Pregnancy Discrimination Act (PDA) both prohibit U.S. employers from terminating employees due to pregnancy and pregnancy-related conditions. In addition, Massachusetts law protects workers from pregnancy discrimination through the Massachusetts Parental Leave Act (PLA) and the Pregnant Workers Fairness Act. Generally, employers cannot treat pregnant women any differently than other workers who have medical conditions that affect their jobs. Keep reading below to learn the 10 overall pregnancy-related rights in the workplace.
- Job Security and Reinstatement: Massachusetts employers must have a like-position for you when you return from a pregnancy-related leave of absence, and they must hold your position open at least as long as they would for other employees on disability leave. You are also entitled to any reinstatement rights that other workers enjoy when they are out for medical reasons. For example, if your employer offers paid leave for an employee who is recovering from a heart attack, you deserve the same benefits while you are away from your job due to pregnancy and related medical issues.
- Paid and Unpaid Leave Benefits: Under FMLA, you are allowed 12 weeks of leave every year for the birth and care of your newborn child; you are also allowed time off to welcome an adopted or foster child. The PLA requires Massachusetts employers with six or more workers to provide at least eight weeks of leave after childbirth or adoption of a child. However, neither law requires your employer to pay you for time off; rather, they protect your rights to job security and reinstatement under the same conditions that other workers receive when they take a leave of absence, though some employers do offer it. If other employees at your workplace are paid while on medical leave, you should be as well. Beginning January 2021, benefits under the new Paid Family and Medical Leave (PFML) law will take effect. Eligible employees will be able to take to up to 12 weeks of paid leave to care for a family member who has a serious health condition or to bond with a new child.
- Non-Continuous Leave: Many women experience different medical conditions both before and after giving birth, and adoptive parents often go through challenges at various stages of their family building process. State and federal law recognizes that allowing for continuous leave only may not accommodate these circumstances, so there are provisions permitting workers to break up their leave as needed. As long as you are otherwise eligible, it is not necessary to take all time consecutively.
- Non-Discriminatory Leave: At both the federal and state level, you cannot be discriminated against when it comes to family benefits based on your marital status. Marriage is not a pre-requisite for pregnancy-related leave and benefits. The provisions of the Massachusetts statute are also gender neutral, further preventing discrimination based on gender or family structure in the Commonwealth.
- Pump Safely and Securely: The Fair Labor Standards Act (FLSA) requires employers across the country to provide employees “reasonable break time” to express breast milk for up to one year after a child’s birth. Employers must provide a place for pumping, other than a restroom, that is sheltered from view and not subject to any intrusion. Under the FLSA, breaks to express breast milk are not required to be compensated, but if compensated breaks are already provided, any employee who uses that time to express milk must receive the same pay as other employees.
In Massachusetts, the Pregnant Workers Fairness Act, which went into effect on April 1, 2018, provides additional protection against pregnancy and pregnancy-related discrimination. Among other measures, the Act establishes that employers with six or more employees cannot discriminate against an employee due to pregnancy or a condition related to pregnancy, such as morning sickness or the need to express breast milk; must grant such employees reasonable accommodations; and cannot take adverse action against an employee who requests a reasonable accommodation. The only exception to the Act’s mandate to provide reasonable accommodation is if it would exert “undue hardship” on the employer—for instance, a prohibitive cost.
- Stay on the Job: While a less common occurrence, some employers may insist that an employee take time off to attend to their health needs and those of their child. However, you cannot be forced to take time off if you are able to perform the routine tasks required of your position. This is true even when your employer thinks they are acting in your best interests. In Massachusetts, The Pregnant Workers Fairness Act stipulates that an employer “cannot make an employee accept a particular accommodation if another reasonable accommodation would allow the employee to perform the same essential functions of the job, or require an employee to take leave if another reasonable accommodation may be provided without undue hardship.”
- Choice: Under federal and Massachusetts law, it is unlawful for an employer to fire you for choosing to have an abortion. In fact, you are entitled to receive benefits for physical or mental disability related to an abortion to the same extent that your employer offers these benefits to other workers. Once again, employers are not required to provide benefits; they are only required to apply such policies to all employees in the same way.
- Knowledge of Your Rights: In Massachusetts, The Pregnant Workers Fairness Act requires employers to provide all employees with written notice of their rights regarding pregnancy and pregnancy-related discrimination. All existing employees must be provided with this information, and all new employees must be provided with it at their time of hire. If an employee becomes pregnant, the employer must furnish the informational materials within ten days of the employee’s notification of pregnancy.
- Action: If you believe you have been discriminated against due to pregnancy or a pregnancy-related condition, you can take action. You can file a discrimination claim with either the Massachusetts Commission Against Discrimination (MCAD) or the U.S. Equal Employment Opportunity Commission (EEOC). It is not necessary to file with both agencies as they share responsibility in processing claims. You may be entitled to recover compensation in the form of back pay and can even request reinstatement as a legal remedy. Keep in mind that there are time limitations when it comes to filing discrimination claims. In Massachusetts, you may file with the MCAD or the EEOC within 300 days of the last discriminatory incident. However, without an equivalent state or local law governing pregnancy discrimination, the EEOC statute of limitations is a mere 180 days.
- Equal Benefits: If there is one takeaway related to pregnancy discrimination, it is that an eligible employee is entitled to the same benefits that other employees with medical conditions enjoy. Employers may not be required to pay for maternity leave or offer other pregnancy-related benefits, but they must apply consistent policies with respect to all workers.
Overall, the federal government, as well as the state of Massachusetts, has taken numerous steps to afford legal protections to working, pregnant individuals. Thanks to these laws, employees can confidently focus on what is best for their health, the health of their child, and the overall well-being of their family; individuals to which these laws apply should take full advantage of these rights as needed without concern of negative repercussions. However, if you believe that your employer has violated any of the laws or withheld any of the rights to which you are entitled, contact an employment lawyer as soon as you can.
Read our quick guide on FMLA.
Pregnancy in the Workplace Resources
Contact a Massachusetts Pregnancy Discrimination Lawyer
These 10 points regarding the rights of pregnant women at work may be useful, but this general overview does not cover all situations involving discriminatory acts. Employers engage in many types of misconduct, either through intentional acts or mistake.
If you have questions or would like to know more about your rights under federal and Massachusetts pregnancy discrimination laws, please contact the Boston-based litigation law firm of Rodman Employment Law at 617.820.5250.