Executive Summary: A new Massachusetts law, the Pregnant Workers Fairness Act, will expand existing legal protections for pregnant employees beginning April 1, 2018. Most notably, employers will be required to provide reasonable accommodations for pregnancy and related conditions, including lactation and the need to express breast milk.
Although pregnant employees already have some protection from discrimination under federal and state law, an employer’s duty to provide reasonable accommodations for pregnancy is limited. The Pregnant Workers Fairness Act changes that. The Act provides a non-exhaustive list of reasonable accommodations employers must typically make, including more frequent or longer paid or unpaid breaks, time off with or without pay to attend to a complication or recover from childbirth, modifying equipment or seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, provision of private non-bathroom space to express breast milk, assistance with manual labor, or a modified work schedule.
When an employee requests an accommodation for pregnancy or a related condition, the employer must engage in a good faith interactive process to determine an effective, reasonable accommodation. 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, limits on lifting over 20 pounds, and private non-bathroom space for expressing breast milk.
An employer may deny an accommodation only when providing one would impose an undue hardship under the law. Relevant factors in this analysis include the nature and cost of the accommodation, the overall financial resources of the employer, the overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities, and the effect on expenses and resources or any other impact of the accommodation on the employer’s program, enterprise, or business. As under disability discrimination laws, the undue hardship exception is narrow and thus risky to rely upon. Because employers bear the heavy burden of demonstrating undue hardship in the event of a dispute, any assertion of undue hardship should be carefully considered and documented, ideally with the help of legal counsel.
In addition to requiring pregnancy-related reasonable accommodation, the Act provides related protections. Specifically, the Act makes it unlawful for employers to take adverse action against an employee who requests or uses a reasonable accommodation, refuse to hire an applicant who is capable of performing the essential functions of the position with reasonable accommodation (absent undue hardship), require an employee to accept an unwanted accommodation that is not necessary to enable the employee to perform the essential functions of the position, or require an employee to take leave if another reasonable accommodation could be provided without undue hardship. The Act also explicitly adds pregnancy and conditions related to pregnancy to the list of protected classes under Chapter 151B, a revision that clarifies existing law.
When the law takes effect, employers will be required to distribute a written notice of rights under the Act, including the right to be free from discrimination because of pregnancy or a related condition and the right to reasonable accommodations. The notice can be contained in a handbook or other document and must be distributed to all employees no later than April 1, 2018. The notice must also be distributed to new employees at the commencement of employment, and within 10 days of an employee’s notification of pregnancy or a pregnancy related condition.
The Massachusetts Commission Against Discrimination may issue guidance which provides additional clarification on the employer’s responsibilities under the Pregnant Workers Fairness Act, and we will continue to monitor any developments.
Recommended Actions
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Employers should begin reviewing their handbooks and related policies so that the required changes can be implemented prior to the effective date of April 1, 2018.
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Employers must add the required written notice of rights to their policies. Additionally, policies regarding attendance, paid and unpaid leave, and meal and rest periods may require revision for compliance with the Act.
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Employers should ensure that managers and human resources personnel are trained regarding the required interactive process, as well as the requirement to distribute notice of the Act’s protections to an employee within 10 days of notification that the employee is pregnant or has a pregnancy-related condition. Organizations may wish to designate specified individuals to coordinate pregnancy-related issues.
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Employers should carefully consider any request for accommodation made by a pregnant (or recently pregnant) employee. If a requested accommodation is unworkable, an employer should work with the employee to determine if a feasible alternative is available. The undue hardship exception should be reserved for truly unusual situations, and employers should thoroughly document the asserted hardship, ideally in consultation with legal counsel.
If you have any questions regarding the new law, please feel free to contact the authors of this Alert, Jennifer Belli, jbelli@bellowelsh.com, or Hayley Cotter, hcotter@bellowelsh.com. Jennifer is a partner with the Boston law firm of Bello/Welsh LLP, a FordHarrison affiliate law firm, and Hayley is an associate with Bello/Welsh. You may also contact the FordHarrison attorney with whom you usually work.