March 23, 2018

Massachusetts Pregnant Workers Fairness Act Effective on April 1, 2018: Be Prepared

Holland & Knight Alert
Miriam McKendall | Philip J. Catanzano

HIGHLIGHTS:

  • The Massachusetts Pregnant Workers Fairness Act (the Act), signed into law on July 27, 2017, becomes effective on April 1, 2018.
  • The Act expressly forbids discrimination against employees due to pregnancy or pregnancy-related conditions, including nursing.
  • Massachusetts employers should review and update their policies and procedures to ensure compliance with the Act's requirements, as well as other state and federal laws relating to parental and medical leaves.

As we reported last summer, the Massachusetts Pregnant Workers Fairness Act (the Act), signed into law on July 27, 2017, becomes effective on April 1, 2018. (See Holland & Knight's alert, "Massachusetts Employers Must Provide Reasonable Accommodations to Workers Who are Pregnant or Nursing," Aug. 2, 2017.) The Act expressly forbids discrimination against employees due to pregnancy or pregnancy-related conditions, including nursing. Employers must remain vigilant of the requirements and prohibitions of the Act and should review and update relevant existing policies and procedures for compliance with the Act, as well as related state and federal laws.

What the Act Does

In addition to prohibiting employment discrimination due to an employee's pregnancy or pregnancy-related conditions, the Act requires Massachusetts employers to provide reasonable accommodations for an employee's pregnancy or pregnancy-related conditions, provided that such accommodations do not impose an undue hardship on the employer. The Act also makes it unlawful for Massachusetts employers to:

  • refuse to hire or promote a person who is pregnant or nursing due to that person's condition or need for a reasonable accommodation, provided the person is capable of performing the essential functions of the job with a reasonable accommodation
  • take adverse action against a pregnant or nursing employee who requests or uses reasonable accommodations
  • require a pregnant or nursing employee to take a leave of absence if another reasonable accommodation may be provided
  • require a pregnant or nursing employee to accept an accommodation that the employee does not wish to accept, if the accommodation is unnecessary to enable the person to perform the essential job functions

Notice Requirements Begin on April 1, 2018

The most immediate step that Massachusetts employers must take is to provide notice to employees of their rights to be free from pregnancy-related discrimination and their rights to reasonable accommodations for pregnancy or pregnancy-related conditions, including nursing. This notice must be in writing, and it must be provided to 1) existing employees by April 1, 2018, 2) new employees at the time of hire, and 3) pregnant or nursing employees within 10 days of the employee's notification to the employer of their condition.

Although the Act is not specific as to the content, the notice should serve to inform the employee about what the Act requires and prohibits, the employer's accommodation process, and the identity of the person(s) to whom the employee may bring questions or a request for an accommodation.

Be Prepared to Implement Reasonable Accommodation Requirements

Central to the Act's protections is the requirement that Massachusetts employers provide reasonable accommodations to workers for pregnancy and pregnancy-related conditions, including nursing. A critical aspect of this requirement is that the employer and the employee must take part in a timely, good faith, interactive process to determine what accommodations are reasonable in the context of the job duties.

Some examples of reasonable accommodations may include: more frequent or longer paid or unpaid breaks, time off to recover from childbirth with or without pay, acquisition or modification of equipment or seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, a private non-bathroom space to express breast milk or breast feed, assistance with manual labor and modified work schedules. Keep in mind that this list is non-exhaustive and each interactive process should be individualized to the employee's needs and job duties.

While in most instances employers may require medical documentation, they may not require medical documentation to establish a pregnant worker's need for the following accommodations: 1) more frequent restroom, food or water breaks, 2) seating, 3) limits on lifting more than 20 pounds and 4) a private non-bathroom space to express breast milk.

Employers may deny accommodations if they can demonstrate undue hardship, which the Act refers to as an action requiring significant difficulty or expense, and which is subject to factual and legal analysis regarding the nature and the cost of the needed accommodation, the employer's financial resources, the overall size of the business, and the effect on expenses and resources by providing the accommodation. In such cases, the employer must still engage in the interactive process described above. The employer may raise an undue hardship defense only after considering fully the employee's request for accommodation as well as any reasonable alternatives.

Update Existing Policies and Procedures

Employers should review and update their policies and procedures to ensure compliance with the Act's requirements by April 1, 2018. Trainings about the new law for human resources staff and managers serve to enhance compliance efforts. In addition, employers should make sure that all workplace policies and procedures are in accord with other state and federal employment laws relating to parental and medical leaves as well as sex, pregnancy and disability discrimination.

  

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


Related Insights