Massachusetts Pregnant Workers Fairness Act Goes Into Effect April 1, 2018

On July 27, 2017, the Massachusetts Pregnant Workers Fairness Act (“PWFA”) was signed into law and takes effect April 1, 2018. The PWFA requires Massachusetts employers to provide pregnant women and new mothers with reasonable accommodations for their pregnancies and any conditions related to their pregnancies to enable them to perform the essential functions of the job, unless doing so would cause the employer undue hardship. The PWFA also adds pregnancy, or a condition related to pregnancy, to the list of protected categories under the Commonwealth’s anti‐discrimination statute making it unlawful for an employer to discriminate against, refuse to hire, or terminate an individual due to pregnancy or pregnancy‐related conditions.

Duty to Provide Reasonable Accommodations
Under the PWFA, an employer must provide reasonable accommodations for an employee’s pregnancy and related conditions (related conditions can include, without limitation, lactation, or the need to express breast milk for a nursing child) unless an employer can demonstrate that the accommodation would impose an undue hardship. The PWFA identifies such reasonable accommodations as including (but not limited to):

  • More frequent or longer paid or unpaid breaks;
  • Time off to attend to a pregnancy complication or recover from childbirth with or without pay;
  • Acquisition or modification of seating or equipment;
  • Temporary transfer to a less strenuous or hazardous position;
  • Job restructuring;
  • Light duty;
  • A private non‐bathroom space for expressing breast milk;
  • Assistance with manual labor; and
  • Modified work schedules.

Interactive Process and Required Documentation
After an accommodation request is made an employer is required to engage in a timely, good faith and interactive process to determine an effective reasonable accommodation that will enable the employee to perform the essential functions of her job. An employer may require medical documentation about the need for certain reasonable accommodations, however, an employer may not require documentation for the following accommodations:

  • More frequent restroom, food and water breaks;
  • Seating;
  • Limits on lifting over 20 lbs.; and
  • Private non‐bathroom space for expressing breast milk.

Other Prohibited Conduct
The PWFA also prohibits employers from:

  • Taking adverse actions against pregnant protected employees who receive or request a reasonable accommodation such as failing to reinstate the employee to the original employment status or to an equivalent position with equivalent pay and accumulated seniority and benefits when the need for reasonable accommodation ceases.
  • Requiring pregnant protected employees to accept an accommodation that the employee does not wish to accept, if that accommodation is not necessary for the employee to perform the essential functions of the job.
  • Denying an employment opportunity to an employee if the denial is based on the need of the employer to accommodate conditions related to pregnancy.
  • Requiring pregnant protected employees to take leave if another reasonable accommodation may be provided without undue hardship.
  • Absent a showing of hardship, refusing to hire a worker who is covered, if the person is capable of performing the essential functions of the job with a reasonable accommodation.

Written Notice Requirement
The PWFA required employers to have distributed written notice to existing employees of their rights under the PWFA in an employee handbook, pamphlet or by other means by April 1, 2018. After that date, written notice must be provided to new employees at the commencement of employment, and to employees who notify their employers of pregnancies or conditions related to their pregnancies within 10 days of such notification.

Recommendations
Employers should review their policies and employee handbooks and revise them as needed to ensure they comply with the PWFA, confer with employment counsel regarding notices required by the PWFA, and conduct trainings for managers and other supervisors on the new protections.

This Employment Law Alert is intended to keep readers current on matters affecting employment law and is not intended to be legal advice. If you have any questions, please contact Walter Foster at 617.342.6853 or wfoster@eckertseamans.com.

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Authors

Walter M. Foster

Member - Boston

Caitlyn M. Bosworth

Associate - Boston

Rachel E. Moynihan

Associate - Boston