On July 27, 2017, Massachusetts Governor Charlie Baker signed into law the Pregnant Workers Fairness Act. This new law, which goes into effect on April 1, 2018, provides pregnant women and new mothers with more comprehensive job protections and accommodation rights than those that previously existed under federal and state laws. Currently, under M.G.L. c. 151B, pregnancy discrimination has been recognized by the courts. In order to make out such a claim, however, an employee would have to shoehorn her pregnancy discrimination claim into a claim for sex or disability discrimination. This resulted in sometime unclear and incomplete protections for pregnant workers. The new law aims to close those gaps and make clear, for employees and employers, the exact protections available to pregnant workers.
The new law expressly recognizes pregnancy, childbirth, and related conditions, such as nursing and the expression of breast milk, as protected statuses under M.G.L. c. 151B. The law specifically prohibits employers from:
- Denying a reasonable accommodation for pregnancy, childbirth, or related conditions, unless the employer demonstrates that the accommodation creates an undue hardship;
- Taking adverse employment action against an employee who requests or uses a reasonable accommodation, which includes failure to reinstate an employee, with seniority, when the need for the accommodation ceases;
- Denying employment opportunities based upon the need for a reasonable accommodation;
- Forcing an employee to accept an accommodation that an employee does not accept and is unnecessary to allow the employee to perform essential job functions;
- Forcing an employee to take a leave of absence when another accommodation may be provided without undue hardship to the employer; and
- Refusing to hire a pregnant woman because of her pregnancy or a related condition, provided the individual is able to perform essential job functions with reasonable accommodations.
The new law also defines “reasonable accommodations” and “undue hardship,” as well as setting forth an interactive process for determining reasonable accommodations, in a similar manner as the current Massachusetts disability discrimination laws, with a few key differences.
For example, the Pregnant Workers Fairness Act specifically states several accommodations that “shall” be included in the definition of “reasonable accommodations.” These include: “more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modified work schedules.” Despite this long list, the Act does not require the creation of new positions or the transfer to a position with more seniority or for which the employee is not qualified.
Like the preexisting law, the burden to demonstrate that a proposed accommodation would create an undue hardship for the employer rests with the employer. Factors to determine hardship are expressly stated in the act to include: “(i) the nature and cost of the accommodation; (ii) the overall financial resources of the employer; 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; (iii) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.”
Finally, as stated above, employers must engage in an interactive process with pregnant employees to determine the existence of reasonable accommodations. While employers may request documentation from medical providers regarding many requested accommodations, an employer may not require documentation for: (1) increased restroom, food, or water breaks; (2) seating; and (3) lifting limitations over 20 pounds.
Requirements are also in place requiring notification of these new rights to existing employees and new employees, as well as employees who notify employers of their pregnancy or related conditions.
Because pregnancy discrimination was, in many ways, prohibited prior to the Act, these changes should not require vast changes in the current practices of employers who were already compliant with Massachusetts law. Policies and handbooks should be reviewed in light of these changes, and managers should be retrained, specifically on areas where the new law differs from the interpretation of the current law.