Massachusetts Employers Should Prepare Now For New Pregnant Workers Fairness Act
Last summer, Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act ("PWFA"), which becomes effective April 1, 2018. This new law amends the Massachusetts employment discrimination statute, Chapter 151B, to provide that employees who are pregnant or have pregnancy-related conditions are entitled to reasonable workplace accommodations, as well as protection from discrimination and retaliation.
In enacting the PWFA, Massachusetts joins 21 other states (as well as Washington, D.C.) that have statutes protecting pregnant employees from discrimination. Most recently, Connecticut, Nevada, Vermont, and Washington passed similar laws in 2017.
Pregnancy Discrimination And Accommodation Law Before The PWFA
Federal law protects workers who are pregnant or who have given birth from discrimination, specifically under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act ("ADA"). In particular, employers must provide reasonable accommodations for medical conditions related to pregnancy or childbirth that constitute covered disabilities under the ADA. However, pregnancy in and of itself is not considered a disability for purposes of the ADA.
Additionally, the Affordable Care Act of 2010 amended the Fair Labor Standards Act to require employers to provide employees with reasonable work breaks for expressing breast milk for up to one year after giving birth. An employee must be given access to a private location other than a bathroom. However, this amendment applies only to non-exempt employees in workplaces with 50 or more employees.
Many states have adopted laws to address concerns not covered by these existing federal laws. Thus, the Massachusetts Legislature enacted the PWFA specifically to address accommodations for pregnancy-related conditions that do not rise to the level of a disability, as well as breastfeeding employees' need to express breast milk at work.
As stated above, the PWFA amends Chapter 151B, which is applicable to Massachusetts employers with six or more employees. The PWFA adds employees who are pregnant or have pregnancy-related medical conditions (including breastfeeding) as a protected class, with the right to be free from discrimination and to request reasonable workplace accommodations related to pregnancy or childbirth, so long as such accommodations do not cause an undue hardship for the employer.
The specific language included in the PWFA - "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" - is very broad. Employers should be mindful of the wide range of potential conditions this language may encompass, such as shortness of breath, carpal tunnel syndrome, edema, depression, miscarriage, and pregnancy termination.
Under the PWFA, unless an employer can demonstrate undue hardship, it must provide reasonable accommodations for employees who are pregnant or have pregnancy-related conditions. The statute delineates certain accommodations that are presumed to be reasonable, including: (1) more frequent or longer breaks; (2) time off to attend to a pregnancy complication or recover from childbirth; (3) acquisition or modification of seating or equipment; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty; (7) a private, non-bathroom space for expressing breast milk; (8) assistance with manual labor; or (9) a modified work schedule.
By contrast, reasonable accommodations under the PWFA do not include discharging or transferring an employee with more seniority, or promoting an employee who is not able to perform the essential functions of the job with or without a reasonable accommodation.
An "undue hardship" is defined under the PWFA as an action requiring significant difficulty or expense. Whether an accommodation would impose an undue hardship depends on the cost of the accommodation, the financial resources of the employer, the overall size of the employer's business, the nature of the employer's facilities, and the likely impact of the accommodation on the employer's operations. The employer has the burden of establishing an undue hardship, which may be challenging - particularly in the case of those accommodations that the PWFA states are presumed to be reasonable.
After an employee makes a request for a reasonable accommodation under the PWFA, the employer must engage in a timely, good faith interactive process to try to identify an effective, reasonable accommodation to enable the employee to perform the essential functions of the job.
Generally, when an employee requests a pregnancy-related accommodation, the employee may be asked to provide supporting documentation from an appropriate health care or rehabilitation professional. However, an employer may not require an employee to provide documentation for any of the following accommodations: (1) more frequent restroom, food, or water breaks; (2) special seating; (3) limits on lifting more than 20 pounds; or (4) use of a private, non-bathroom space for expressing breast milk.
Prohibited Adverse Actions
In addition to requiring employers to grant reasonable accommodations for pregnancy or pregnancy-related conditions, the PWFA provides that an employer may not: (1) take adverse action against an employee in retaliation for her requesting or using a reasonable accommodation; (2) deny an employment opportunity based on the need to make a reasonable accommodation; (3) require an employee to accept an accommodation that the employee does not desire, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job; (4) require an employee to take a leave of absence if another reasonable accommodation would be feasible; or (5) refuse to hire an applicant because of pregnancy or a pregnancy-related condition, if the applicant is capable of performing the essential functions of the job, with or without a reasonable accommodation.
The PWFA also requires Massachusetts employers to provide all employees - regardless of gender - with written notice of their right to be free from discrimination and enjoy reasonable accommodations in relation to pregnancy and pregnancy-related conditions. This notice may be provided in a handbook, pamphlet, or other means of notice to all employees.
Additionally, employers must provide notice of PWFA rights to all new employees upon or prior to commencement of their employment.
Finally, an employee who notifies her employer of a pregnancy or pregnancy-related condition must be given written notice of her rights under the statute within 10 days of such notification.
Recommendations For Employers
Before the PWFA takes effect on April 1, 2018, there are a number of steps we suggest Massachusetts employers take, with the assistance of employment counsel, to ensure compliance with this new law:
- Update employee handbooks, job applications, equal employment opportunity statements, and similar materials to include pregnancy and pregnancy-related conditions as categories protected from discrimination;
- Revise policies regarding reasonable accommodations, work breaks, and leaves of absence to incorporate pregnancy and pregnancy-related conditions;
- Ensure that all supervisors, managers, and human resources employees are trained on the requirements of the PWFA;
- Provide written notice to all employees of their right to be free from discrimination in relation to pregnancy and pregnancy-related conditions; and
- Implement a system under which an employee who gives notice of a pregnancy or pregnancy-related condition will receive written notice of her rights under the PWFA within 10 days.
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If you have any questions about the steps your organization should take to comply with the Massachusetts PWFA, please feel free to contact us.