As you may know, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act in July, expanding state protections for pregnant women and new mothers, and setting new rules for employers with six or more employees. Below is a brief synopsis of some of the most important changes that you should know about, and what you should do to prepare for the law’s effective date of April 1, 2018, which will be here before you know it.

Prohibition Against Workplace and Hiring Discrimination Related to Pregnancy and Nursing

The law expressly adds the following as protected categories against discrimination to the Massachusetts state code, Chapter 151B: “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.”

As a result, victims of pregnancy discrimination can now win the same remedies available under any Chapter 151B action, including but not limited to back pay, front pay, punitive and compensatory damages, and attorneys’ fees.
Requires Reasonable Accommodations for Expectant and New Mothers in the Workplace

The new law also makes clear that employers must provide reasonable accommodations to workers for any pregnancy, as long as the accommodations don’t impose an “undue hardship” on the business.[1] This means that employers must provide a reasonable accommodation to any pregnant worker, not just those suffering from a pregnancy-related disability.

The law also includes a non-exhaustive list of possible accommodations, including providing pregnant workers (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.

The employer and employee must engage in a timely, good faith and interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of her job. And while an employer may require that documentation about the need for a reasonable accommodation come from an appropriate healthcare or rehabilitation professional, this law expressly bars employers from requesting documentation before providing three common forms of accommodation: (1) more frequent restroom, food and water breaks; (2) seating; and (3) limits on lifting more than 20 pounds.

Requires Employee Notice

The law also requires employers to give written notice to new and existing employees of their right not to be discriminated against because of pregnancy, and obligates them to remind workers of their rights when they disclose a pregnancy (within 10 days of such disclosure). This notice may be distributed by way of handbook or other means.

So, what should you do?

  • Ensure that you do not:
    • refuse to hire (or otherwise deny employment opportunities to) a pregnant person because of the pregnancy or related condition, if she is capable of performing the essential functions of the job with a reasonable accommodation, unless you can show that the accommodation would impose an undue hardship on your business;
    • deny a reasonable accommodation for an employee’s pregnancy or related condition unless you can show that the accommodation would impose an undue hardship on your business;
    • require an employee to take a leave of absence if another reasonable accommodation may be provided without undue hardship to your business;
    • require an employee to accept an accommodation that she chooses not to accept if such an accommodation is unnecessary to enable her to perform the essential functions of her job; or
    • take adverse action in terms, conditions or privileges of employment against an employee who requests or uses a reasonable accommodation.
  • Update your employee handbooks, policies, rules and procedures to reflect the new law’s requirements for treating and accommodating pregnant workers.
  • Conduct trainings for management and human resources staff, who will likely receive accommodation requests from pregnant workers and/or employment inquiries from pregnant candidates.

If you have any questions about this new law or its requirements, BakerHostetler’s Employment Group is available to help.

[1] The law defines “undue hardship” as an action requiring significant difficulty or expense, and states that it is the employer’s burden to prove undue hardship. The factors to be considered in determining whether the employer has met its burden are: (i) the nature and cost of the accommodation needed; (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; (iv) the number, type and location of its facilities; and (v) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.