One of the big disappointments of the last legislative session was the fate that befell the Pregnant Workers Fairness Bill. That legislation would require employers to make reasonable workplace accommodations for pregnant employees — things like more frequent or longer breaks, temporary transfer to a less strenuous or hazardous position, a modified work schedule, seating for those whose jobs require extended standing, and, after birth, private space for pumping breast milk.
Similar legislation has passed in more than a dozen states, including those as different as Colorado, West Virginia, New Jersey, Delaware, Illinois, Maryland, and Rhode Island.
That legislation, however, ran into trouble with the Associated Industries of Massachusetts, a powerful business association that now has enhanced clout on Beacon Hill due to its relationship with both the business-climate-sensitive Baker administration and the House leadership. AIM weighed in against the bill, which didn’t survive the end-of-session rush.
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So why did AIM object? The organization maintains that the protections would be redundant, because they are contained in other legislation. Which legislation? The business lobby’s explanation changed over the course of a day or so when a Globe editorial writer inquired on the issue. At first, an AIM spokesman echoed what AIM had written to the legislature: The same protections are offered in the federal Family and Medical Leave Act and in its state counterpart, the Commonwealth's parental leave law. But later, AIM said similar protections were actually offered in the 1978 federal Pregnancy Discrimination Act, as amplified by a 2015 US Supreme Court decision.
But the court decision AIM now cites would impose a considerable burden on a pregnant worker trying to get an unwilling employer to extend accommodations; the proposed legislation, on the other hand, would establish a commonly understood right of reasonable accommodation.
A second objection, however, may have more merit. AIM fears the legislation would give pregnant employees an endless right to reject the accommodations offered by employers.
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It’s not their intent to give employees an endless veto, say advocates, who note that they would be more than willing to address that concern. “We’re happy to negotiate on that,” said state Representative Ellen Story, House sponsor of the legislation. On that score, it’s worth noting that the bill contains some safeguards for business. For example, it says businesses don’t have to provide those accommodations if doing so would create an undue business hardship, defined as something “requiring significant difficulty or expense.”
So where is House leadership? Speaker Robert DeLeo is said to be interested in the bill, but as a consensus-seeker, DeLeo wants legislation that business can support and that Governor Charlie Baker will sign.
There could be some progress coming on that front. AIM president Rick Lord and Story have been in touch by telephone; an effort is underway for a meeting between the legislative sponsors, AIM, and legal experts to discuss the legislation. Lord, who seemed surprised and taken aback by the attention the AIM-aided legislative inaction has received, says that “we are going to work in good faith” to find common ground.
With the legislature no longer in formal session, the bill would need unanimous legislative consent to pass this year. With AIM’s approval, it just might get that. One way to nudge AIM along would be for legislative leaders to make it clear that, when they return to formal session in January, they will no longer accommodate vague and poorly defined business interventions on this important bill.
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