On July 27, 2017, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (the “PWFA”) into law. Massachusetts joined twenty-one states and Washington D.C. in providing protections to pregnant workers.
The PWFA supplements Massachusetts employment discrimination law, by adding pregnant employees and employees with pregnancy-related medical conditions (including breastfeeding) as a protected class with the right to be free from discrimination in the workplace and the right to reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on their employer.
The Act, which takes effect on April 1, 2018, applies to employers with six or more employees. Employers are required to provide employees written notice of their rights on or before its effective date, and should start becoming familiar with the Act’s requirements and start making plans to ensure compliance now.
Duty to Provide Reasonable Accommodations
Much of the PWFA hinges on concepts of “reasonable accommodation” and “undue burden.” Under the PWFA, a “reasonable accommodation” enables an employee (or prospective employee) to perform essential job functions while pregnant (or while experiencing a condition related to pregnancy). In general, determining the appropriate reasonable accommodation is achieved through an interactive dialogue between the employer and the employee requesting the accommodation; however, the PWFA also identifies several reasonable accommodations, as follows.
- More frequent or longer breaks and/or a modified work schedule
- Changes to seating/work equipment
- Temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, and/or assistance with manual labor
- Time off to attend to a pregnancy complication or recover from childbirth
- Private, non-bathroom space for expressing breast milk
The PWFA requires an employer to provide these reasonable accommodations unless the employer is able to demonstrate an undue hardship on the employer’s business. An employer may demonstrate this undue hardship by proving that the requested accommodation would require significant difficulty or expense, taking into consideration factors including the size and resources of the employer and the nature and cost of the accommodation.
The PWFA permits an employer to require written documentation from a health care professional demonstrating the need for most accommodations, but employers cannot require documentation of the need for more frequent breaks, changes to seating, limits on lifting more than twenty pounds, or providing a private, non-bathroom space for expressing milk.
The PWFA prohibits several practices. An employer may not commit any one of the following acts:
- Taking an adverse action against a pregnant employee or an employee with a pregnancy-related condition who has requested a reasonable accommodation;
- Denying an employment opportunity to a pregnant employee or an employee with a pregnancy-related condition based on the need to make a reasonable accommodation;
- Requiring a pregnant employee or an employee with a pregnancy-related condition to take a leave of absence if another reasonable accommodation may be provided without undue hardship;
- Requiring a pregnant employee or an employee with a pregnancy-related condition to accept an accommodation that is not necessary for the employee to perform the essential functions of the job;
- Refusing to hire a person because that person is pregnant or has a pregnancy-related condition, if the person is capable of performing the essential functions of the job with a reasonable accommodation, unless the accommodation would pose an undue hardship.
Written Notice to Employees
The PWFA requires employers to ensure that its employees have written notice of their rights under the Act. As noted above, employers must provide written notice of the rights afforded by the PWFA to all employees prior to its April 1, 2018 effective date. Thereafter, employers must provide written notice to all new hires prior to their start dates and to any employee if that employee provides notice to the employer of pregnancy or a condition related to pregnancy.
How to Prepare
Employers should not wait until the PWFA takes effect to take steps to ensure compliance. In addition to updating their antidiscrimination policies and providing supervisors and managerial staff with training regarding employees’ rights under the Act, employers should take affirmative steps to evaluate the types of accommodations employees most likely will request under the Act and carefully consider how to implement those accommodations and whether they may pose an undue burden. Employers also should assess the essential functions of various positions, and whether (and how) an accommodation might permit an employee affected by pregnancy or a pregnancy-related condition to fulfill those functions.
If you have any questions about the PWFA or are interested in further guidance on how to ensure compliance with the Act from day one, contact one of Conn Kavanaugh’s employment lawyers for assistance.