Massachusetts employers will have increased obligations for pregnant employees starting April 1, 2018. Governor Baker signed the Pregnant Worker Fairness Act (PWFA) which amended the anti-discrimination statute, M.G.L. Chapter 151B to expand the protections currently provided under Federal and state law. Under the new law, employers are prohibited from discriminating against candidates or employees on the basis of their pregnancy. Employers must provide employees with written notice of their right to be free from discrimination in the workplace on the basis of their pregnancy both at the time of hire and upon learning that an employee is pregnant.
Currently under Federal and state law, employers are prohibited from discrimination on the basis of an employee’s pregnancy. However, under existing law, employers are not specifically required to accommodate the needs of all pregnant workers. The new law expands protections for pregnant workers to require that employers provide the same reasonable accommodations to pregnant workers that they do for employees who are disabled. Currently, employers are only required to accommodate pregnant workers who develop a pregnancy related medical conditions sufficiently serious enough to qualify as a disability.
The new law requires that employers engage pregnant employees in a timely manner to begin a good faith interactive process to determine if a reasonable accommodation can be provided that would permit the employee to perform the essential functions of the job. Examples of reasonable accommodations include, extended break times, more frequent food or drink breaks, lifting restrictions or assistance, providing a secure private location (not a restroom) for nursing employees to express breast milk. Employers are not obligated to provide pregnant employees with any requested accommodation, only those that do not pose an undue hardship upon the employer. An undue hardship is generally defined as any accommodations that involve great difficulty or expense for the employer.
To ensure that covered Massachusetts employers are in compliance by April 1, 2018, employers must provide a notice of rights to all existing employees by April 1, 2018. Going forward, all new employees must receive the notice upon hire and then again within ten days after the employer is informed of an employee’s pregnancy. The Massachusetts Commission Against Discrimination (MCAD) has published employer Guidance for the Pregnant Worker Fairness Act to assist them with compliance. Additionally, employers need to amend their policies and procedures or employee handbooks to reflect the new requirements. The MCAD has not provided a sample notice for employers to use but interested members can contact the Association for an example of a PWFA rights notice.
NOTICE
PREGNANT WORKERS FAIRNESS ACT
The Pregnant Workers Fairness Act (“the Act”) amends the current statute prohibiting discrimination in employment, G.L. c. 151B, §4, enforced by the Massachusetts Commission Against Discrimination (MCAD). The Act, effective on April 1, 2018, expressly prohibits employment discrimination on the basis of pregnancy and pregnancy-related conditions, such as lactation or the need to express breast milk for a nursing child. This notice is intended to describe an employers’ obligations to employees that are pregnant or lactating and the protections these employees are entitled to receive. Generally, employers may not treat employees or job applicants less favorably than other employees based on pregnancy or pregnancy- related conditions and have an obligation to accommodate pregnant workers.
Under the Act:
· Upon request for an accommodation, an employer has an obligation to communicate with the employee in order to determine if a “reasonable accommodation” for the pregnancy or pregnancy-related condition. This is called an “interactive process,” and it must be done in good faith. A “reasonable accommodation” is a modification or adjustment that allows the employee or job applicant to perform the essential functions of the job while pregnant or experiencing a pregnancy-related condition, without undue hardship to the employer.
· An employer must accommodate conditions related to pregnancy, including post-pregnancy conditions such as the need to express breast milk for a nursing child, unless doing so would pose an undue hardship on the employer. “Undue hardship” means that providing the accommodation would cause the employer significant difficulty or expense.
· An employer cannot require a pregnant employee to accept an accommodation, or to begin disability or parental leave if another reasonable accommodation would enable the employee to perform the essential functions of the job without undue hardship to the employer.
· An employer cannot refuse to hire a pregnant job applicant or applicant with a pregnancy-related condition, because of the pregnancy or the pregnancy-related condition, if an applicant is capable of performing the essential functions of the position with a reasonable accommodation.
· An employer cannot deny an employment opportunity or take adverse action against an employee because of the employee’s request for or use of a reasonable accommodation for a pregnancy or pregnancy-related condition.
· An employer cannot require medical documentation about the need for an accommodation if the accommodation requested is for: (i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting no more than 20 pounds; and (iv) private, non-bathroom space for expressing breast milk. An employer, may, however, request medical documentation for other accommodations.
- · Employers must also provide written notice of employees’ rights under the Act: (1) to new employees at or prior to the start of employment; and (2) to an employee who notifies the employer of a pregnancy or a pregnancy-related condition, no more than 10 days after such notification.
The foregoing is a synopsis of the requirements under the Act, and both employees and employers are encouraged to read the full text of the law available on the General Court’s website here:
https://malegislature.gov/Laws/SessionLaws/Acts/2017/Chapter54.
If you believe you have been discriminated against on the basis of pregnancy or a pregnancy-related condition, you may file a formal complaint with the MCAD. You may also have the right to file a complaint with the Equal Employment Opportunity Commission if the conduct violates the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964. Both agencies require the formal complaint to be filed within 300 days of the discriminatory act.
Boston Headquarters: One Ashburton Place, Room 601, Boston, MA 02108 | (617) 994-6000
Springfield: 436 Dwight Street, Room 220, Springfield, MA 01103 | (413) 739-2145
Worcester: 484 Main Street, Room 320, Worcester, MA 01608 | (508) 453-9630
New Bedford: 128 Union Street, Suite 206 New Bedford, MA 02740 | (774) 510-5801
Scott Moore, Esq, is the principal consultant for EMS Resource Advisors, a full-service EMS consulting agency.
