By: Lena J. Finnerty
On July 27, 2017, Governor Baker signed into law the Massachusetts Pregnant Workers Fairness Act (the “MPWFA”) which extends the protections afforded pregnant workers in Massachusetts beyond those currently provided under federal law. The Act, which will go into effect April 1, 2018, will amend the current anti-discrimination statute in Massachusetts, to prohibit workplace and hiring discrimination related to pregnancy, nursing, and other pregnancy-related conditions.
Current federal law protects pregnant and new mothers from discrimination in the workplace under the Americans with Disabilities Act and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act. If an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the employer must treat that employee in the same way it treats other temporarily disabled employees. However, the ADA does not consider pregnancy itself a “disability.” Rather, only conditions or impairments resulting from pregnancy may be considered covered disabilities.
Massachusetts has expanded these protections under the new MPWFA to provide all pregnant and nursing employees with reasonable accommodations without having to establish that they have a covered medical condition. The language of the MPWFA will be codified with the current Massachusetts anti-discrimination statute, M.G.L. c. 151B, stating that it is an unlawful practice for employers to discriminate based on “pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child . . .”, and to deny a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy, unless the employer can show that the accommodation would impose an undue hardship that requires significant difficulty or expense on the employer’s program, enterprise or business.
Requirements under the MPWFA
(1.) Engage in the Interactive Process
The employer and employee must engage in a timely and good-faith interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of their job.
(2.) Reasonable Accommodation
Examples of reasonable accommodation under the MPWFA 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; and
- Private non-bathroom space for expressing breast milk.
An employer may request documentation from an appropriate health care or rehabilitation professional about the need for a reasonable accommodation, unless the request is for the following pregnancy accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.
Covered employers must provide written notice to all employees of their rights under the MPWFA in the form of a handbook, pamphlet, or other written means, including the right to be free from discrimination based on pregnancy and related conditions, and the right to reasonable accommodations. Written notice must be provided to:
- New employees at or prior to the start of employment;
- Existing employees by April 1, 2018; and
- Within ten (10) days of the date an employee informs the employer of their pregnancy or related condition.
Who is Covered
- Employers with six (6) or more employees; and
- All employees, regardless of sex or gender.
What Employers Should do Now
- Provide written notice to all current employees by April 1, 2018; to new hires upon the date of hire; and within ten (10) days to any employee who informs employer of pregnancy or related condition;
- Review and amend employee handbooks and policies to reflect compliance with requirements of MPWFA;
- Train human resources personnel, managers, and staff about the requirements of the MPWFA; and
- Consult counsel with any legal compliance questions regarding the MPWFA.
If you are an employer with questions on how to best comply with the new MPWFA and other statutory obligations, or an employee that believes their employment rights have been violated, contact the experienced employment law attorneys at Pierce & Mandell.