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The Pregnant Workers Fairness Act: Recommendations for Employers

On April 1, 2018, the Pregnant Workers Fairness Act (the "Act") takes effect. https://malegislature.gov/Laws/SessionLaws/Acts/2017/Chapter54. The Act amends Massachusetts' anti-discrimination law, G.L. c. 151B, which applies to employers with six or more employees, to now include pregnancy and related conditions as protected categories. The Act requires employers to provide "reasonable accommodations" for pregnancy and related conditions, including breastfeeding and the need to express breast milk, so long as the accommodations do not cause the employer "undue hardship."

Under the Act, reasonable accommodations include but are not limited to the following: "(i) more frequent or longer paid or unpaid breaks; (ii) time off to recover from childbirth with or without pay; (iii) acquisition or modification of equipment or seating; (iv) temporary transfer to a less strenuous or hazardous position; (v) job restructuring; (vi) light duty; (vii) private non-bathroom space for expressing breast milk; (viii) assistance with manual labor; or (ix) modified work schedules."

Upon receiving a request for accommodation for pregnancy or a related condition, the employee and employer must "engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation." And, although the employer may require medical documentation about the need for accommodations, the employer cannot require documentation for "(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting more than 20 pounds; and (iv) private non-bathroom space for expressing breast milk."

An employer may deny an accommodation only when it presents an "undue hardship" to the employer. The employer has the burden of proof of demonstrating that the requested accommodation presents an "undue hardship," which the Act defines as requiring "significant difficulty or expense." Factors to be considered include: "(i) the nature and cost of the needed accommodation; (ii) the overall financial resources of the employer; (iii) 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 (iv) the effect on expenses and resources or any other impact of the accommodation on the employer's program, enterprise or business." Employers should bear in mind that the undue hardship exception is a narrow one and carries a heavy burden of proof.

In addition to requiring that employers provide reasonable accommodations for pregnancy and related conditions, the Act also prohibits employers from doing the following:

  • taking adverse action against an employee who requests or uses a reasonable accommodation on account of pregnancy or a related condition;
  • denying an employment opportunity to an employee based on the need to make a reasonable accommodation because of the employee's pregnancy or related condition;
  • requiring an employee who is pregnant or affected by a related condition to accept an accommodation that is unnecessary to enable the employee to perform the essential functions of the job;
  • requiring an employee to take a leave of absence if another reasonable accommodation can be provided for the pregnancy or related condition; or
  • refusing to hire a person who is pregnant because of the pregnancy or a related condition.

Employers must provide written notice to their employees of their rights under the Act. Written notice must be provided to (i) all existing employees on or before April 1, 2018; (ii) new employees at the commencement of their employment; and (iii) within ten days of an employee's notification of pregnancy or pregnancy-related condition.

In anticipation of the Act's April 1, 2018 effective date, we urge employers to do the following:

  • update their handbooks and other written policies to ensure they are in compliance with the Act;
  • provide written notice to all current employees of their rights under the Act;
  • ensure that their managers and human resource personnel are trained regarding the required interactive process and the requirement to provide written notice of the Act's protections within 10 days of an employee's notification of pregnancy or a pregnancy-related condition; and
  • make available access to private, non-bathroom space for employees to express breast milk.

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