On July 27, 2017, Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act, requiring Massachusetts employers to provide pregnant women and new mothers with “reasonable accommodations” for their pregnancies and any conditions related to their pregnancies. As a result, Massachusetts joins an increasing number of states across the country providing these rights. The Act, which takes effect on April 1, 2018, also provides pregnant women and new mothers with increased legal protection against discrimination in the workplace.

Specific Prohibitions and Requirements

The Act amends the state anti-discrimination law, Massachusetts General Laws, Chapter 151B, which applies to employers with six or more employees, to prohibit employers from

• denying a reasonable accommodation for an employee’s pregnancy or related condition (“related conditions” include, without limitation, lactation, or the need to express breast milk for a nursing child) unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business;
• taking adverse action against an employee who requests or uses a reasonable accommodation in terms, conditions, or privileges of employment, including, but not limited to, failing to reinstate the employee to the original employment status or to an equivalent position with equivalent pay and accumulated seniority and benefits when the need for reasonable accommodation ceases;
• denying employment opportunities to an employee if such denial is based on the need of the employer to make a reasonable accommodation to the known conditions related to the employee’s pregnancy;
• requiring an employee affected by pregnancy or related conditions to accept an accommodation that such employee chooses not to accept if such an accommodation is unnecessary to enable the employee to perform the essential functions of the job;
• requiring an employee to take a leave of absence if another reasonable accommodation may be provided to the known conditions related to the employee’s pregnancy without undue hardship to the employer; or
• knowingly refusing to hire a person who is pregnant because of the pregnancy or related condition, provided such person is capable of performing the essential functions of the position involved with a reasonable accommodation, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.

The Act provides that “reasonable accommodation” may include, but is not limited to: “(i) more frequent or longer paid or unpaid breaks; (ii) time off to 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) private non-bathroom space for expressing breast milk; (viii) assistance with manual labor; or (ix) modified work schedules.”

The Act defines “undue hardship” as an action requiring significant difficulty or expense and states that it is the employer’s burden to prove undue hardship. The factors to be considered in determining whether the employer has met its burden are: (i) the nature and cost of the accommodation needed; (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; (iv) the number, type, and location of its facilities; and (v) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

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 the employee’s job.” Although an employer may require an employee to provide “documentation from an appropriate health care or rehabilitation professional,” an employer may not require such documentation for the following accommodations: (1) more frequent restroom, food, or water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The Act also requires employers to notify employees of their rights. Written notice must be provided to (i) new employees at the commencement of employment, (ii) existing employees on or before April 1, 2018, and, (iii) for employees who notify their employers of pregnancies or conditions related to their pregnancies, within 10 days of such notification.

Key Employer Takeaways

Although pregnant workers already have protections under existing federal and state anti-discrimination laws, the Massachusetts Pregnant Workers Fairness Act clarifies and expands pregnant workers’ rights with respect to the accommodations they must be afforded. For example, under the Act workers must be provided reasonable accommodations regardless of whether their pregnancy-related conditions constitute a “disability.” Employers need to understand the full scope of their obligations when addressing workplace accommodation needs of pregnant employees and new mothers.

Employers that fail to comply with the Act are exposed to significant potential legal liability. Because the Act’s provisions are incorporated into Chapter 151B, violations will subject employers to the employee remedies available under Chapter 151B, including back pay and front pay damages, uncapped compensatory and punitive damages, and the payment of a claimant’s reasonable attorney’s fees and costs. Thus, employers should ensure that their human resource professionals and managers who respond to employee requests for accommodations are fully aware of employer obligations under the Act.