On July 27, 2017, Massachusetts’ Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act (PWFA), which applies to employers with six or more employees. The PWFA makes it unlawful for an employer to discriminate against an employee due to pregnancy or a condition related to pregnancy, including, but not limited to, the need to express breast milk for a nursing child. The PWFA also provides needed and reasonable accommodations to pregnant workers.
Massachusetts employers should start reviewing and revising their employment policies and practices so they are prepared for the PWFA, which goes into effect on April 1, 2018. Below is an overview of the key provisions under the new law.
The PWFA makes it unlawful to:
• Take adverse action or retaliate against an employee who requests or uses a reasonable accommodation. This includes 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 reasonable accommodation ceases.
• Deny an employment opportunity to an employee if the denial is based on the need to make a reasonable accommodation to the known conditions related to the employee’s pregnancy.
• Require a pregnant employee or employee with a pregnancy related condition to accept an accommodation, if that accommodation is not necessary to enable the employee to perform the essential functions of the job.
• Require an employee to take leave if another reasonable accommodation may be provided to the known conditions related to the employee’s pregnancy without undue hardship on the employer.
• Refuse to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy; provided that, the person is capable of performing the essential functions of the position with reasonable accommodations and that the reasonable accommodation would not impose an undue hardship on the employer.
Under the PWFA, employers must provide “reasonable accommodations” and adhere to the PWFA’s process for establishing such accommodations on behalf of a covered employee. Specifically, the employee and employer must engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation to enable the employee to perform the essential functions of the position.
Under the law, reasonable accommodations include, but are not limited to:
• More frequent or longer breaks
• Time to attend to a pregnancy-related complication or recover from childbirth
• 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 Modified work schedule
An employer can deny an employee’s request for reasonable accommodation if the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise or business.
The employer has the burden of proving undue hardship, which is defined as an action requiring significant difficulty or expense. Undue hardship may include the following factors:
• nature and cost of the needed accommodation
• overall financial resources of the employer
• overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities
• effect on expenses and resources
• other impact on the employer’s program, enterprise or business
Employers may require documentation from an appropriate health care professional about the need for a reasonable accommodation, unless it is for:
• more frequent restroom, food or water breaks during pregnancy
• limits on lifting over 20 pounds
• private non-bathroom space for expressing breast milk
If an employee requests an accommodation extension, an employer may require documentation.
Other Employer Responsibilities
The PWFA requires employers to distribute a written notice to their employees that details their right to be free from discrimination in relation to pregnancy or a condition related to the employee’s pregnancy. The notice must be provided in a handbook, pamphlet or other means of notice to all employees, including, but not limited to, new employees at or prior to the commencement of employment. Importantly, the notice must also be given to an employee within 10 days of the employee notifying their employer of a pregnancy or a condition related to the employee's pregnancy.
What Should Employers Do Next?
The new law takes effect on April 1, 2018. Employers should review their existing policies and revise them as needed to ensure they comply with the PWFA. Employers should also be sure to train hiring managers and other supervisors on the new protections provided by the law, including the need to provide an employee with notice of her PWFA rights within 10 days after she notifies the employer she is pregnant or has a condition related to her pregnancy.
If you are a Massachusetts employer and have not already taken steps to comply with the PWFA, you should do so immediately. Please contact Gina Wodarski (firstname.lastname@example.org) or Jackie Piscitello (email@example.com) if you require assistance with developing a new PWFA policy, amending your current policies, or otherwise ensuring compliance with the PWFA.