The Year Ahead: What Massachusetts Employers Need to Know For 2018

November 29, 2017

In 2018, several significant workplace laws will go into effect in Massachusetts; employers should take steps now to ensure compliance with these new requirements. Employers should also be aware of their changing obligations to employees who use medical marijuana, in light of the Supreme Judicial Court's recent Barbuto decision. Below is our summary of what every Massachusetts employer should know about these recent developments in the law. 

1. The Pregnant Workers Fairness Act

This legislative enactment, which goes into effect on April 1, 2018, requires employers with six or more employees to provide reasonable accommodations to employees who are expectant or new mothers. In contrast to established legal protections for pregnant women whose condition amounts to a disability, the new Act requires accommodations from employers regardless of whether the pregnancy-related condition constitutes a disability. The law provides employers with an exception where the requested accommodation poses an undue hardship to the employer. 

As with disabled employees, employers must engage in a timely, good faith, interactive process with the employee to determine what accommodations are needed to enable an expectant employee to perform her job.

Such accommodations might include: 

  • More frequent or longer paid or unpaid breaks; 

  • Time off to recover from childbirth; 

  • Adjusted 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 

  • Modified work schedules.

An employer may require medical certification of the need for accommodation, but NOT for; more frequent restroom, food and water breaks; seating changes; limits on lifting up to 20 pounds; or private, non-bathroom space for expressing breast milk.

Required Notice to Employees: Written notice of the right to be free from discrimination, including the right to reasonable accommodations, must be conspicuously posted at an employer's place of business in an area accessible to employees. Notice must also be provided to: 

  • New employees at the commencement of employment;

  • Existing employees; and 

  • Any employee who notifies the employer of a pregnancy or a condition related to pregnancy (within 10 days of notification).

What should employers do now to ensure compliance with the Act? Employers should update their existing leave and accommodation policies to reflect the Act's requirements. Employers also should ensure that all human resources, and supervisory staff are aware of this law and their obligation to provide a reasonable accommodation.

2.  The Massachusetts Equal Pay Act

Amendments to the state's Equal Pay Act will take effect on July 1, 2018. The lawrequires that all employees be paid the same for comparable work, regardless of gender.

What's changed:

The definition of "comparable work": Now defined more broadly to mean "work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions."

Permissible salary differentials: Employers may institute pay differences for comparable work based on:

  • Seniority (that does not penalize employees for pregnancy, parental, family, or medical leave);

  • A bona fide merit system;

  • A system that measures earnings by quantity or quality of production, sales, or revenue;

  • Geographic location;

  • Education/training/experience; or

  • Travel (if a regular and necessary condition of the job).

No past salary inquiries: Employers may not ask job candidates about their salary history during job offer negotiations.

 

 No gag rules: Employers may not prohibit employees from discussing or disclosing their salaries.

 

Limits on correcting pay inequity: Employers may not correct a gender-based pay inequity by lowering salaries.

 

Employer Safe Harbor: Employers have an affirmative defense to liability under the Act if, within the past three years and before a suit is commenced, they have:

 

(1)  completed a good faith self-evaluation of their pay practices that is reasonable in detail and scope; 

and

(2)  can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work, if any, in accordance with that evaluation.

 

Penalties for violating Act: The amount of unpaid wages (going back as far as three years), liquidated damages in an equal amount of actual damages, and the employee's attorney's fees.

 

What should employers do to ensure compliance with the Act? Employers should begin thinking about whether, and how to conduct a pay audit to avail themselves of Safe Harbor protections, and should consult with counsel to weigh the pros and cons of the self-audit. 

 

3. Accommodating Medical Marijuana Use by Employees

In 2017, the Massachusetts Supreme Judicial Court decided the ground-breaking case of Barbuto v. Advantage Sales and Marketing, LLC. The Court held that an employee may bring a disability discrimination claim against an employer for its refusal to accommodate the employee's use of marijuana to treat a disabling medical condition.

What do employers need to know? 

  • Massachusetts employers may be required to tolerate off-site marijuana use by employees who use it to treat a disabling condition, even when such use violates the employer's drug use policy.

  • Before terminating (or refusing to hire) an individual for marijuana use, employers must engage in the interactive process with the individual to determine whether the employee can perform the essential functions of the position, whether the use of marijuana presents an undue hardship to the employer, and/or whether there are alternative, equally effective accommodations available to the individual.

  • In some cases, employers may be able to demonstrate that allowing marijuana use presents an undue hardship, for example, if it violates the employer's contractual duties to others, or presents a safety risk.

4. Increases in Employer Medical Assistance Contributions

On August 1, 2017, Governor Charlie Baker signed "An Act Further Regulating Employer Contributions to Health Care." For the next two years, the Act will increase current employer contribution (EMAC) fees and impose a supplemental penalty on certain employers whose employees receive Mass Health or subsidized coverage through the Massachusetts Connector Care program. 

What is EMAC? EMAC is a state managed contribution fund that subsidizes health care to low-income residents of the Commonwealth.

Will the existing EMAC fee increase? Yes, rates will increase from a maximum fee of $51 to $77 per employee.

What is the EMAC Supplement? The Supplement, which goes into effect during the quarter beginning on January 1, 2018, applies to employers with more than five employees in Massachusetts who are: (1) non-disabled, and (2) either obtain health insurance from Mass Health (excluding the premium assistance program) or receive subsidized coverage through the Massachusetts Connector Care program. This penalty will apply regardless of whether the employer offers affordable health insurance to its employees.

How much is the EMAC Supplement? Employers subject to the EMAC Supplement will now pay a penalty of up to $750 per year for each non-disabled employee who receives MassHealth or subsidized coverage through the Connector.The Supplement does not apply to employers with five (5) or fewer employees.

How will the EMAC Supplement be administered? The Department of Unemployment Assistance (DUA) will administer the program and calculate the amounts owed by each employer. These amounts will be added to the DUA's statement showing the employer's Unemployment Insurance liability.

How do employers pay their EMAC contributions? Employers pay their EMAC fees and penalties through their Department of Unemployment Assistance online account.  

For more information, see the  FAQs issued by the DUA. The DUA is also in the process of issuing implementing regulations.