Massachusetts Pregnant Workers Fairness Act Takes Effect April 1, 2018

Starting April 1, 2018, Massachusetts will join New York, California and many other states around the country that have state pregnancy disability and accommodation laws.

The Massachusetts Pregnant Workers Fairness Act ("MPWFA"), signed into law by Governor Charlie Baker earlier this year, ensures that pregnant workers or workers with pregnancy-related conditions receive reasonable accommodations and protection from employment discrimination and retaliation under Massachusetts General Laws Chapter 151B, the state's anti-discrimination statute ("Chapter 151B"). The MPWFA takes effect April 1, 2018, and employers in the Commonwealth should begin now to prepare to implement the MPWFA's new requirements.

As with other protections under Chapter 151B, the MPWFA is applicable to employers with six or more employees. After April 1, 2018, claims of discrimination on the basis of pregnancy or a pregnancy-related condition will be treated like other discrimination or retaliation claims under Chapter 151B, for which a complaint must generally be filed with the Massachusetts Commission Against Discrimination within 300 days of the act of discrimination.

Under the MPWFA, pregnancy and pregnancy-related conditions are explicitly identified as protected categories. Pursuant to amended Section 4 of Chapter 151B, it shall be an unlawful practice for "an employer, by himself or his agent, because of "¦ pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child "¦ to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." A pregnancy-related condition under the MPWFA may include a broad range of potential conditions, e.g., edema (swollen ankles), lactation, depression, miscarriage, shortness of breath, carpal tunnel.

The MPWFA includes a non-exhaustive list of "reasonable accommodations" that, unless an employer can demonstrate undue hardship, may be required, specifically: (i) more frequent or longer paid or unpaid breaks; (ii) time off to attend to a pregnancy complication or recover from childbirth with or without pay; (iii) acquisition or modification of equipment or seating; (iv) temporary transfer to a less strenuous or hazardous position; (v) job restructuring; (vi) light duty; (vii) assistance with manual labor; or (viii) modified work schedules. In addition, the MPWFA requires that employers provide employees with access to private non-bathroom spaces for expressing breast milk, which the statute considers to be a reasonable accommodation.

Further, under the MPWFA, while an employer may require documentation about the need for a reasonable accommodation from an appropriate health care or rehabilitation professional, an employer may not require documentation for the following accommodations: (i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.

Finally, before April 1, 2018, employers must provide employees with written notice of the right to be free from discrimination in relation to pregnancy or a condition related to the employee's pregnancy including without limitation lactation or the need to express breast milk for a nursing child, including the right to reasonable accommodation for conditions related to pregnancy under the MPWFA. The statute also requires that notice of MPWFA rights be provided: (1) to new employees at or prior to the commencement of employment; and (2) to an employee who notifies the employer of a pregnancy or a condition related to the employee's pregnancy within 10 days of such notification.

As such, before the end of this year, employers in Massachusetts should:

• carefully evaluate and revise their handbooks, paying attention to adjusting existing handbook provisions regarding anti-discrimination and retaliation to explicitly incorporate pregnancy and pregnancy-related conditions as protected categories;
• review current policies and practices relating to rest and meal breaks, pregnancy-related leaves, and reasonable accommodations, to assess what adjustments could be made for pregnant employees and employees with pregnancy-related conditions;
• train managers and supervisors on the new requirements of the MPWFA;
• ensure access to private non-bathroom space for expressing milk;
• anticipate providing notice (by way of a handbook, pamphlet, or other means) to current employees of the right to be free from discrimination in relation to pregnancy or a pregnancy-related condition, which notice must be provided on or before April 1, 2018; and
• prepare to implement a system such that employees who notify the company of pregnancy or a pregnancy-related condition will receive notice of their rights under the MPWFA within 10 days of having given notice.

As always, after a request for accommodation has been made by an employee or prospective employee, the parties should engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation to enable the employee or prospective employee to perform the essential functions of the employee's job or the position to which the prospective employee has applied.