Massachusetts Employers Must Provide Reasonable Accommodations to Workers Who Are Pregnant or Nursing

• The Massachusetts Pregnant Workers Fairness Act (the Act), signed into law by Gov. Charlie Baker on July 27, 2017, amends the Massachusetts anti-discrimination statute to require employers to provide reasonable accommodations for an employee's pregnancy or pregnancy-related condition.
• The Act also prohibits workplace and hiring discrimination related to such reasonable accommodation requests.
• Although the Act does not take effect until April 1, 2018, Massachusetts employers should begin planning now so they are prepared to comply with the Act.

Massachusetts Gov. Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act (the Act) on July 27, 2017. The Act amends the Massachusetts anti-discrimination statute, Massachusetts General Laws, Chapter 151B, to require employers to provide reasonable accommodations for an employee's pregnancy or pregnancy-related condition and to prohibit workplace and hiring discrimination related to such reasonable accommodation requests. The Act takes effect on April 1, 2018.

The accommodation of pregnancy by employers is a growing trend nationally, and many states have enacted similar statutes. In addition, federal laws provide protections for employees who are pregnant or nursing, and the U.S. Equal Employment Opportunity Commission has issued an enforcement guidance on pregnancy discrimination.

Reasonable Accommodations

Existing federal and Massachusetts laws already prohibit pregnancy discrimination in relation to many employment actions, such as hiring and firing. The Act expands these protections to require that pregnancy and related conditions be accommodated, in a manner similar to providing workplace accommodations to employees with disabilities. By contrast, the Americans with Disabilities Act does not include pregnancy alone as a disability and requires that employers accommodate only pregnancy-related medical conditions or complications sufficient to constitute a disability. The Act makes it unlawful for Massachusetts employers to deny reasonable accommodations for all pregnant or nursing employees.

Reasonable accommodations may 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, job restructuring, light duty, a private non-bathroom space for expressing breast milk, assistance with manual labor or modified work schedules. The list is non-exhaustive, and Massachusetts employers must work individually with employees to determine the most appropriate course of action.

Massachusetts employers may deny accommodations if they can demonstrate undue hardship, which the Act refers to as an action requiring significant difficulty or expense. In determining whether undue hardship exists, courts will consider the nature and cost of the accommodation, the overall financial resources of the employer, the number of employees, the number and type of facilities, and the effect of the accommodation on company expenses and resources. In these cases, employers must still engage in the interactive process, and the employer may raise an undue hardship defense only after considering fully the employee's request for accommodation.

Interactive Process

Massachusetts employers must engage in an interactive process with employees to determine effective reasonable accommodations to allow the employee to perform her job while pregnant or nursing. Employers may require medical documentation in most cases, but may not require medical documentation to establish a pregnant worker's need for the following accommodations: more frequent restroom, food or water breaks; seating; limits on lifting more than 20 pounds; and a private, non-bathroom space to express breast milk. Massachusetts employers will be expected to work individually with pregnant and nursing employees to identify reasonable accommodations specific to the employee's job duties.

Other Unlawful Practices

The Act enumerates several unlawful practices in addition to the denial of reasonable accommodations to pregnant and nursing women. Once the Act takes effect, it will be unlawful for Massachusetts employers to:

• take adverse action against a pregnant or nursing employee who requests or uses reasonable accommodations
• refuse to hire or promote a pregnant or nursing employee due to the employer's need to make a reasonable accommodation
• require a pregnant or nursing employee to accept an accommodation that the employee does not wish to accept, if the accommodation is unnecessary to enable the employee to perform the essential functions of her job
• require a pregnant or nursing employee to take a leave of absence if another reasonable accommodation may be provided
• refuse to hire a person who is pregnant or nursing because of her condition, provided the employee is capable of performing the essential functions of the job with reasonable accommodations

Notice Requirements

Massachusetts employers must provide written notice to employees of their rights to be free from pregnancy-related discrimination and their rights to reasonable accommodations for pregnancy and nursing. Such notice must be provided to existing employees by April 1, 2018, to new employees at the time of hire, and to pregnant or nursing employees within 10 days of the employee's notification.

Takeaways For Employers

Although the Act does not take effect until next spring, Massachusetts employers should begin planning so they are prepared to comply with the Act. Employers should review and update their policies and practices, discuss options for various types of accommodations, and consider training for human resources staff on the new law, the interactive process and existing laws. Employers must notify employees of their rights and distribute new policies by April 1, 2018.   

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.