Massachusetts employers will face new obligations regarding pregnant women and new mothers when the state’s new Pregnant Workers Fairness Act (PWFA) takes effect on April 1.
AleksandarNakic / E+ / Getty Images
The PWFA requires employers to provide pregnant women and new mothers “reasonable accommodations” both for their pregnancies and for any conditions related to their pregnancies. It also creates a new protected class under the state’s antidiscrimination statute, Mass. Gen. L. Ch. 151B, which applies to employers with six or more employees.
“Related conditions” under the Act include but are not limited to breastfeeding or the need to express breast milk for a nursing child. Under the Act, a pregnant woman or new mother no longer needs to meet the “qualified handicapped individual” standard, as would be the case if she were asking for an accommodation based on a disability.
An employer need not provide an accommodation if it can show that the requested accommodation would be an undue hardship, but that is usually a high burden.
The PWFA prohibits an employer from taking adverse action against an employee who has asked for or been granted a reasonable accommodation, including (1) failing to reinstate the employee to her previous position or one that is substantially similar when the need for the accommodation ceases or (2) failing to hire or promote an employee based on her need for an accommodation.
The PWFA also makes it illegal to require a pregnant employee or an employee affected by a condition related to pregnancy to accept an accommodation that she declines to accept if the accommodation isn’t necessary to enable her to perform the essential functions of her job. That would include a prohibition against requiring an employee to take a leave of absence if there’s another reasonable accommodation that would allow her to perform the essential functions of her job, as long as there’s no undue hardship to the employer.
The law also prohibits an employer from knowingly refusing to hire a job applicant who is pregnant because of her pregnancy or a related condition if she is capable of performing the essential functions of the position with a reasonable accommodation.
Accommodations Under the Law
“Reasonable accommodations” under the PWFA may include:
- More frequent or longer paid or unpaid breaks;
- Time off to recover from childbirth with or without pay;
- The acquisition or modification of equipment or seating;
- A temporary transfer to a less strenuous or hazardous position;
- Job restructuring;
- Light duty;
- A private space (that is not a bathroom) for expressing breast milk;
- Assistance with manual labor; or
- A modified work schedule.
The Act requires the employer and employee to “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.”
Employers are restricted in their ability to seek medical documentation to support the employee’s requested accommodation. An employer may not require medical documentation for the following accommodations:
(1) More frequent restroom, food, or water breaks;
(2) Seating; or
(3) Limits on lifting more than 20 pounds.
Required Notice, Penalties
Employers must provide existing employees written notice of their rights under the PWFA on or before April 1. New employees must receive written notice at the time of hire, and employees who inform their employer of their pregnancy or related condition must receive written notice of their rights within 10 business days of the day the employer learns of the pregnancy or related condition.
The PWFA creates a new protected class for employees in Massachusetts under Chapter 151B, which means that all the remedies already available to employees in other protected classes will be available to employees who are pregnant or have a condition related to pregnancy. Those remedies include back pay, front pay, compensatory and punitive damages, damages for emotional distress, and attorneys’ fees.
For more information on the PWFA, see the October 2017 and March 2018 issues of Massachusetts Employment Law Letter.
Susan G. Fentin is the editor of Massachusetts Employment Law Letter and of counsel at the firm of Skoler, Abbott & Presser, P.C. She can be reached at 413-737-4753 or sfentin@skoler-abbott.com.