THESE UPDATES ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL ADVICE OR RECOMMENDATION
Summary of The Massachusetts Pregnant Workers Fairness Act
The Massachusetts Pregnant Workers Fairness Act will go into effect on April 1, 2018. The Act prohibits Massachusetts employers from denying pregnant women and new mothers reasonable accommodation for their pregnancies and any conditions related to their pregnancies and provides increased legal protection against pregnancy-related discrimination in the workplace. The law applies to employers with six or more employees.
The Act amends the state anti-discrimination law, Massachusetts General Laws, Chapter 151B, and prohibits employers from:
- denying a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child if the employee requests such an accommodation; provided, however, that an employer may deny such an accommodation if the employer can demonstrate that the accommodation would impose an undue hardship on employer:
- taking adverse action against an employee who requests or uses a reasonable accommodation in terms, conditions or privileges of employment including, but not limited to, failing to reinstate the employee to the original employment status or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits when the need for a reasonable accommodation ceases;
Denying an employment opportunity to an employee if the denial is based on the need of the employer to make a reasonable accommodation to the known conditions related to the employee’s pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child;
Requiring an employee affected by pregnancy, or by a condition related to the pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job;
Requiring an employee to take a leave if another reasonable accommodation may be provided for the known conditions related to the employee’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, without undue hardship on the employer’s program, enterprise or business;
Refusal to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child; provided, however, that the person is capable of performing the essential functions of the position with a reasonable accommodation and that reasonable accommodation would not impose an undue hardship on the employer
Forms of Reasonable Accommodation
“Reasonable accommodation” may include, but is not limited to: “(i) more frequent or longer paid or unpaid breaks; (ii) time off to attend to a pregnancy complication or recover from childbirth with or without pay; (iii) acquisition or modification of equipment or seating; (iv) temporary transfer to a less strenuous or hazardous position; (v) job restructuring; (vi) light duty; (vii) private non-bathroom space for expressing breast milk; (viii) assistance with manual labor; or (ix) a modified work schedule; provided, however, that an employer shall not be required to discharge or transfer an employee with more seniority or promote an employee who is not able to perform the essential functions of the job with or without a reasonable accommodation.”
The Act defines “undue hardship” as “an action requiring significant difficulty or expense”. It is the employer’s burden to prove undue hardship. In making a determination of undue hardship, the following factors are considered: (i) the nature and cost of the needed accommodation; (ii) the overall financial resources of the employer; (iii) the overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities; and (iv) the effect on expenses and resources or any other impact of the accommodation on the employer.
Upon request for an accommodation from the employee or prospective employee capable of performing the essential functions of the position involved, the employee or prospective employee and the employer, the employer and employee or prospective employee are required to “engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation to enable the employee or prospective employee to perform the essential functions of the employee’s job or the position to which the prospective employee has applied.” Notably, although an employer may require an employee to provide “documentation from an appropriate health care or rehabilitation professional,” an employer may not require such documentation for the following accommodations: (1) more frequent restroom, food, or water breaks; (2) seating; (3) limits on lifting more than 20 pounds; and (4) private non-bathroom space for expressing breast milk.
Notice of Act:
Employers must provide written notice to employees of the right to be free from discrimination due to pregnancy or a condition related to pregnancy, including the right to reasonable accommodations for conditions related to pregnancy, in a handbook, pamphlet, or other means of notice no later than April 1, 2018.
The notice must be provided “in a handbook, pamphlet or other means of notice to all employees including, but not limited to: (i) new employees at or prior to the commencement of employment; and (ii) an employee who notifies the employer of a pregnancy or an employee who notifies the employer of a condition related to the employee’s pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child not more than 10 days after such notification.”
The MCAD Guidance on the Pregnant Workers Fairness Act may be used to fulfill the notice requirement of the Act. You can download it here
Since the Act is incorporated into Massachusetts General Laws, Chapter 151B, violations will subject employers to remedies available under Chapter 151B, including back pay, compensatory and punitive damages, and reasonable attorney’s fees and costs.