/>iOn July 27, 2017, Governor Charlie Baker signed into law an amendment to the Commonwealth’s anti-discrimination statute, solidifying and expanding protections for pregnant and nursing workers. The Pregnant Workers Fairness Act (the “Act”) codifies certain protections that had previously existed only in case law, strengthens and expands other pre-existing statutory protections, and clearly delineates both an employer’s obligations to employees that are or recently have been pregnant, and what protections these employees are entitled to receive. The Act goes into effect on April 1, 2018.
The Pre-Existing Patchwork
There is currently a constellation — or perhaps more accurately a patchwork — of protections for new and/or expecting mothers. A number of statutes provide for unpaid leave. The Massachusetts Parental Leave Act requires employers with six or more employees to provide eight weeks of unpaid leave to an employee with at least three months tenure. The Federal Family Medical Leave Act requires employers with 50 or more employees within a 75 mile radius to provide twelve weeks of unpaid leave (consecutive or intermittent) to an employee who has been on the job for at least one year.
Additionally, State and Federal law have long been interpreted to protect pregnant women from disparate treatment, recognizing it as a form of gender discrimination. These protections require employers to treat pregnant workers similarly to non-pregnant workers. Pregnant and/or new mothers may also find protection under State and Federal laws prohibiting disability discrimination. These protections are significant because, while gender discrimination protections require a hands-off approach (e.g., do not consider pregnancy when making employment decisions), disability discrimination law mandates a hands-on approach. Once an employer knows, or should know, that an employee is disabled, the employer must explore and potentially provide a reasonable accommodation that allows the employee to perform the essential functions of the job.
In order to benefit from the protections of disability discrimination law, however, a woman must establish that she is a qualified handicapped person; she must show she has a mental or physical condition that substantially limits one or more major life activities, and yet she is able to perform the essential functions of the job with, or without, reasonable accommodation. This is not always an easy burden for a woman to carry. For example, as recently as 2012, the Massachusetts Supreme Judicial Court noted that lactation, or the need to express breast milk, was not recognized as a disability under the Americans with Disabilities Act.[1]
The Act
Under the Act, a pregnant woman or new mother no longer needs to establish that she is a qualified handicapped individual. The law is now explicit that upon request, employers with six or more employees must provide reasonable accommodations for an employee’s “pregnancy or any condition related to pregnancy including, but not limited to, lactation or the need to express breast milk.” Moreover, employers cannot force a particular accommodation on an employee — and must “engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation.” For example, an employer cannot require an employee to take a medical leave if another reasonable accommodation would allow the employee to perform the essential functions of the job.
The Act provides a non-exhaustive list of reasonable accommodations: (1) more frequent or longer paid or unpaid breaks; (2) time off to attend to a pregnancy complication or recover from childbirth with or without pay; (3) acquisition or modification of equipment or seating; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty; (7) assistance with manual labor; or (8) a modified work schedule. The employer has the burden to show that an accommodation is not reasonable because it would impose an undue hardship — defined as requiring the employer to suffer significant difficulty or expense — in order to relieve the employer’s obligation.
An employer may ask for medical documentation to support an accommodation request, but must accept that documentation from an “appropriate health care or rehabilitation professional,” which includes, but is not limited to, a doctor, psychiatrist, psychologist, nurse practitioner, physician assistant, psychiatric clinical nurse specialist, physical therapist, occupational therapist, speech therapist, vocational rehabilitation specialist, midwife, or lactation consultant. Further, an employer may not require medical documentation to support a request for: (1) more frequent restroom, food or water breaks; (2) new or modified seating; (3) limits on lifting more than 20 pounds; and (4) private non-bathroom space for expressing breast milk.
An employee whose rights under the Act have been violated may bring claims for injunctive relief (e.g., an order that an employer do, or stop doing something), and/or monetary damages, including emotional distress, lost wages and benefits, reasonable attorneys’ fees, and potentially punitive damages.
The Interplay of the Act with Existing Laws Provides Enhanced Protections
Significantly, the Act is not intended to limit, diminish or otherwise affect the existing patch work of laws protecting pregnant workers. Rather, it was intended to bolster and expand such protections. For example, in certain situations a female employee may be entitled far more leave than one might realize. Such employee may be entitled to pre-birth leave as a reasonable accommodation under the ADA; followed by post-birth parental leave and job protections under the MA Parental Leave Act and/or the FMLA; and then further post-birth leave as a reasonable accommodation under the Pregnant Workers Fairness Act.
In conclusion, the interplay between these various statutes is complicated. There is often no bright-line test or rule, and each situation will likely depend on the specific facts. As always, the Employment Law group at Sherin and Lodgen is available to answer any questions about the Act, or any other employment-related issues that may arise.
[1] The Affordable Care Act did, however, create an obligation on employers covered by the Fair Labor Standards Act to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express milk.” Also, these employers must 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.”
