Although pregnant employees have existing protection from discrimination under federal and Massachusetts law, beginning on April 1, 2018, the Massachusetts Pregnant Workers Fairness Act (the “Act”) greatly expands an employer’s duty to provide reasonable accommodations for pregnancy and pregnancy related conditions.
The Act explicitly adds pregnancy and conditions related to pregnancy to the list of protected classes under Chapter 151B, Massachusetts’s anti-discrimination law, and prohibits employers from discriminating against current employees and job applicants on the basis of pregnancy or a “condition related to pregnancy.” A condition related to pregnancy can occur during or after pregnancy. Examples include, but are not limited to, morning sickness, lactation, or the need to express breast milk.
Under the Act, employers must grant an employee a “reasonable accommodation” for an employee’s pregnancy or condition related to pregnancy, unless doing so would impose an undue hardship on the employer. Further, once an employer is on notice of the need for an accommodation, the Act requires employers to communicate with the employee in a timely, good faith, interactive process to determine an effective, reasonable accommodation. A reasonable accommodation is a modification or adjustment that allows an employee to perform the “essential functions” of the employee’s position. Some examples of reasonable accommodations provided by the Act are: (1) more frequent or longer breaks; (2) time off; (3) providing equipment or seating; (4) temporary transfer to a less strenuous or hazardous job; (5) job restructuring; (6) light duty; (7) private space for expressing breast milk; (8) assistance with manual labor; and (9) a modified work schedule. While an employer may require documentation from a health care professional for certain accommodations, it cannot require medical documentation for more frequent restroom, water, or food breaks, seating adjustments, limits on lifting more than 20 pounds, and private, non-bathroom space for expressing breast milk.
Other aspects of the Act include prohibitions on the following:
- Denying an employment opportunity to, or taking an adverse (negative) action against, an employee because of the employee’s request for or use of a reasonable accommodation. For example, an employer cannot demote an employee because the employee requested the temporary accommodation of light duty.
- Requiring an employee to accept a particular accommodation if another reasonable accommodation would allow the employee to perform the essential functions of the job, or require an employee to take a leave if another reasonable accommodation may be provided without undue hardship. For example, an employer cannot force an employee to change positions if an alternative reasonable accommodation would allow the employee to perform the essential functions of her current position.
Lastly, the Act requires employers to provide written notice in a handbook, pamphlet or by other means to all employees of their rights under the Act no later than April 1, 2018. Employers must also notify the following employees on a continuing basis: (1) new employees; and (2) an employee who notifies the employer of a pregnancy or a pregnancy-related condition, not more than 10 days after notification.
In preparing for the Act to take effect, employers are encouraged to review the Massachusetts Commission Against Discrimination’s Guidance and Questions and Answers (each may be found by following this link), train hiring managers, supervisors, and human resources personnel on these new protections, provide the written notice required by the Act, and, with the assistance of legal counsel, revise existing policies as needed to ensure compliance.
If you have any questions or need additional information concerning this topic, please contact Nancy Puleo or any other attorney in our Employment Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2018 Posternak Blankstein & Lund LLP. All rights reserved.
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