On July 27, Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act. The Pregnant Workers Act (1) requires Massachusetts employers to provide pregnant women and new mothers with “reasonable accommodations” for their pregnancies; and (2) prohibits discrimination against employees on the basis of pregnancy or a condition related to pregnancy, including lactation or the need to express breast milk for a nursing child. The law takes effect April 1, 2018.
Rep. Robert De Leo (D), Speaker of the Massachusetts House, made the new law a priority after the women’s advocacy group MotherWomen and employer advocate Associated Industries of Massachusetts reached agreement on proposed language for the bill. According to backers of the bill, at least 18 other states have similar protections for pregnant workers.
Amending state law
The Pregnant Workers Act amends the Massachusetts Fair Employment Practice Act, General Laws Chapter 151B, Section 4, by adding “pregnancy or a conditions related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child” to the categories of legally protected status. Massachusetts courts already recognize pregnancy discrimination as a form of prohibited sex discrimination.
Because the provisions of the Pregnant Workers Act are incorporated into Chapter 151B, violations will subject employers to the employee remedies available under the latter, including back pay and front pay, uncapped compensatory and punitive damages, and the payment of a claimant’s reasonable attorneys’ fees and costs.
The new law also requires Massachusetts employers to accommodate “pregnant employees” in the same manner as they are required to accommodate employees with disabilities. Section 2 of the Act provides the following non-exclusive list of accommodations:
- more frequent or longer paid or unpaid breaks;
- time off to attend to a pregnancy complication or 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;
- private non-bathroom space for expressing breast milk;
- assistance with manual labor; or
- a modified work schedule; provided, however, that an employer shall not be required to discharge or transfer an employee with more seniority or promote an employee who is not able to perform the essential functions of the job with or without a reasonable accommodation.
Interactive process and requests for documentation
Employees (or prospective employees) desiring an accommodation under the Pregnant Workers Act must engage in a timely, good faith and interactive process with their employer to determine an effective reasonable accommodation that will enable the employee (or prospective employee) to perform the essential functions of the job. During this process an employer may require documentation from an appropriate health care or rehabilitation professional. However, the employer may not require documentation for the following accommodation requests: more frequent restroom, food or water breaks; seating; limits on lifting more than 20 pounds; and private, non-bathroom space for expressing breast milk.
As is true under the Americans with Disabilities Act, requests for accommodations are subject to the “undue hardship” defense. The Pregnant Workers Act defines “undue hardship” in the pregnancy arena as follows:
“Undue hardship,” an action requiring significant difficulty or expense; provided, however, that the employer shall have the burden of proving undue hardship; provided further, that in making a determination of undue hardship, the following factors shall be considered: (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.
Specific conduct prohibited
Under the Pregnant Workers Act, it is an unlawful employer practice to
- take adverse action against an employee who requests or uses a reasonable accommodation in terms, conditions or privileges of employment;
- deny an employment opportunity to an employee if the denial is based on the need of the employer to make a reasonable accommodation to the known conditions related to the employee’s pregnancy;
- require an employee affected by pregnancy, or require said employee affected by a condition related to the pregnancy, to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job;
- require an employee to take a leave if another reasonable accommodation may be provided for the known conditions related to the employee’s pregnancy, without undue hardship on the employer’s program, enterprise or business;
- refuse to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child; provided, however, that the person is capable of performing the essential functions of the position with a reasonable accommodation and that reasonable accommodation would not impose an undue hardship, demonstrated by the employer, on the employer’s program, enterprise or business.
Comparison with current pregnancy protections “on the books”
In April, 2015, the Massachusetts Parental Leave Act went into effect. It provides protected leave for "pregnancy related disabilities," which it defines as “a physical or mental impairment, associated with an individual's pregnancy, miscarriage, abortion, childbirth, or recovery therefrom, which substantially limits one or more major life activities.”
Pregnancy and related conditions may also have to be accommodated under Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court decided in Young v. United Parcel Service that Title VII’s sex discrimination provisions might require an employer to accommodate pregnancy and related conditions if it provides reasonable accommodations to non-pregnant employees.
The Nursing Mothers Act, enacted as part of the Patient Protection and Affordable Care Act, amended the federal Fair Labor Standards Act to require employers to provide unpaid breaks for mothers to express milk.
Under the ADA, an employer is required to accommodate a pregnant employee with a disability (which could include a complication related to pregnancy or a condition unrelated to the pregnancy), but not the pregnancy itself, which is not a “disability” under the ADA.
Further action ahead
The Massachusetts Commission Against Discrimination will develop a course of instruction and conduct public education efforts as necessary to inform employers, employees and employment agencies about their rights and responsibilities under the Pregnant Workers Act.
No later than April 1, 2018, all Massachusetts employers must provide written notice to current employees (in a handbook, pamphlet, or by other means) of the right to be free from discrimination in relation to pregnancy or a condition related to an employee’s pregnancy (including lactation), as well as the right to reasonable accommodation for conditions related to pregnancy. The notice must be provided according to the following timetable:
*Existing employees: No later than April 1, 2018
*New hires: At time of hire after April 1, 2018
*Pregnant employees: After April 18, 2018, within 10 days of the employee’s notification to the employer that she is pregnant.
Employers should review their personnel policies and materials to ensure compliance with this new law.