On July 27, 2017, Governor Baker signed the Massachusetts Pregnant Workers Fairness Act (the “Act”).  Once the Act takes effect on April 1, 2018, most employers with employees in Massachusetts will be required to provide reasonable accommodations to employees for pregnancy and related conditions.

Key Provisions

Federal and Massachusetts state laws prohibited discrimination on the basis of pregnancy, but in most situations employers were not specifically required to accommodate the needs of pregnant employees.  The sponsors of the Act noted this limitation and drafted the statute to amend Massachusetts’ anti-discrimination law (known as “Chapter 151B”) to address these concerns.¹ In so doing, the Act expands the obligations of Massachusetts employers in two significant ways.

First, the Act requires employers to reasonably accommodate all pregnant employees, just as they are required to reasonably accommodate employees with disabilities.  In contrast, under the federal Americans with Disabilities Act (the “ADA”), pregnancy by itself is not a “disability.”  As a result, under the ADA an employer generally is only required to accommodate a pregnant employee who experiences complications serious enough to constitute a disability.  Thus, the Act substantially increases the number of employees an employer must reasonably accommodate.

Second, the Act requires employers to accommodate employees with a need to express breast milk. Existing federal law requires employers to: (a) provide non-exempt employees with reasonable break time to express breast milk for her nursing child for one year after the child’s birth, and (b) provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  The Act goes beyond this limited obligation under federal law and requires an employer to engage in the interactive process to find a reasonable accommodation based on the individual needs of an employee.  The reasonable accommodation obligation could result in employers providing longer or more frequent break times or other accommodations not specifically required under federal law.

Other Requirements

Engage in the Interactive Process

The Act requires that the employer and employee or prospective employee “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.”

Reasonable Accommodations

The Act provides the following examples of accommodations that may be required:

• 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;
• 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; and
• Modified work schedules.

An employer is not required to provide an accommodation that would cause an undue hardship, which the Act defines as an accommodation “requiring significant difficulty or expense.”

Documentation

An employer generally may request documentation to support the need for an accommodation, with important exceptions.  An employer may not request documentation for common pregnancy accommodations including:

• More frequent restroom, food, or water breaks;
• Seating;
• Limitation on lifting objects over 20 pounds; and
• Private non-bathroom space for expressing breast milk.

Posting Requirements

Employers must provide employees with written notice of the Act, outlining the right to reasonable accommodations for pregnancy and related conditions.  Written notice should be provided to:

• new employees at time of hire;
• existing employees by April 1, 2018; and
• any employee notifying the employer of her pregnancy.

The employer must provide notice within 10 days of the date a pregnant employee informs the employer of her pregnancy. 

Next Steps for Employers

Although the Act does not become effective until April 1, 2018, employers should act now to:

• Review personnel policies to determine whether they need to be amended in light of the Act’s requirements;
• Train human resources personnel and managers regarding the requirements of the Act;
• Make sure proper measures are in place so that written notice of the Act is provided to current employees by the Act’s effective date, to any new hires upon hire, and to any employee who notifies the employer she is pregnant or of a condition related to the employee’s pregnancy, within 10 days of such communication by the employee.

We recommend that employers work with experienced employment counsel to ensure their policies and practices comply with the Act’s expansive requirements.