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Massachusetts Act Protecting Pregnancy Takes Effect April 1, 2018

posted Mar 28, 2018, 2:21 PM by Adam Chandler   [ updated Mar 28, 2018, 2:27 PM ]

The Massachusetts Pregnant Workers Fairness Act (the “Act”) goes into effect on April 1, 2018.  The Act amends M.G.L. ch. 151B, §4 Massachusetts anti-discrimination statute to expressly prohibit discrimination on the basis of pregnancy or pregnancy-related conditions.    

According to the Act, employers are generally prohibited from treating employers or job applicants less favorably than others on the basis of a pregnancy or pregnancy-related condition, such as for example lactation or breastfeeding. 

With this general prohibition in mind, the Act provides more specifically as follows: 

Employers cannot discriminate or retaliate.
  • Employers cannot deny an employment opportunity or take an adverse employment action against an employee because of a pregnancy or because the employee requests or uses a reasonable accommodation for a pregnancy-related condition.
  • Employers cannot refuse to hire a person because of a pregnancy or a condition related to the person’s pregnancy, including for example lactation, if the applicant is capable of performing the essential job functions with or without a reasonable accommodation.
Employer must provide reasonable accommodations.
  • Employers must engage in a timely and good faith interactive process (i.e. they must communicate with the employee in good faith to determine an effective, reasonable accommodation to enable the employee to perform the essential job functions.
  • Employers must grant requests for reasonable accommodations for an employee’s pregnancy or pregnancy-related condition, including but not limited to lactation, morning sickness, or the need to express breast milk.
  • Reasonable accommodations may include, but are not limited to:
    • Frequent or longer paid or unpaid breaks
    • Time off to attend to pregnancy complications or recover from childbirth
    • Acquire or modifying equipment or seating
    • Temporary transfer to a less strenuous or hazardous position;
    • Job restructuring
    • Light duty
    • Private space for expressing breast milk
    • Assistance with manual labor
    • Modified work schedule
  • Employers may require documentation about the need for an accommodation from an appropriate health care provider except the employer SHALL NOT ask for documentation for accommodations for 1) more frequent restroom, food or water breaks, 2) seating, 3) limits on lifting more than 20 pounds, or 4) private non-bathroom space for expressing breast milk. 
Employers must provide on-site space to express milk.
  • Employers must provide an employee a private, non-bathroom space to express breast milk or to breastfeed.  
  • Such space may include but is not limited to a private room or office.  
  • In addition, the space must be free from instruction by other employees, visitors and the public (i.e. it must have a lock) and the space must allow employees to comfortably express breast milk or breastfeed, by for example, having sufficient electrical outlets for breast pumps, tables or other surfaces to hold breast pumps or other needed items, and provide adequate seating.  
  • The space must also be convenient enough for the employees that traveling to and from the space does not materially impact an employee’s break time.    
Employers cannot force a person to accept leave or an accommodation.
  • Under the Act, Employers cannot require an employee affected by pregnancy or a condition thereof, to accept a particular accommodation if the accommodation is not necessary to enable the employee to perform the essential job functions.
  • Employers also cannot require an employee to take leave if another reasonable accommodation may be provided for the pregnancy or relate condition.
Employers do need not grant an accommodation if it causes undue hardship.
  • Under the Act, an employer need not grant a request for accommodate only when it would impose an undue hardship on the employer.   
  • An undue hardship is defined as “an action requiring significant difficulty or expense.” The employer has the burden to prove an undue hardship prevented the accommodation based on all of the facts and circumstances including 1) the nature and cost of the accommodation, 2) the overall financial resources of the employer, 3) the overall size in terms of number of employees, and number, the and location of facilities, of the employer, 4) the effect on expenses and resources or the accommodation on the employer’s enterprise or business.
Employers must provide Notice of Employees’ Rights Under the Act.
  • The Act also requires that employers provide written notice to employees by April 1, 2018 of the right to be free from discrimination due to pregnancy or a condition related to pregnancy, including the right to reasonable accommodations associated with pregnancy or a related condition.  Such notice can be made in a handbook pamphlet, or other means.  
  • Employers must also provide written notice of employees’ rights under the Act any new employee(s) prior to or at the start of their employment.
  • Employers must provide written notice of their rights under the Act to any employee who notifies the employer of a pregnancy or pregnancy-related condition within 10 days after such notification.
Given the fast-approaching April 1 effective date of the Act, employers are well-advised to develop and provide notice under the Act as more fully discussed above, and to review their written policies, handbooks, and practices to ensure that they are complying with the Act.  For more information, employers can refer to the guidance and Q&A’s discussing the requirements of the Act issued by the Massachusetts Commission Against Discrimination, or contact legal counsel.
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