On May 10, 2017, the Massachusetts House, by unanimous vote (150-to-0), passed the Massachusetts Pregnant Workers Fairness Act. If enacted, the Act will expand existing protections for pregnant employees in Massachusetts and require employers to provide pregnant women and new mothers with “reasonable accommodations” for their pregnancies and any conditions related to their pregnancies. The bill (House, No. 3680) is expected to pass the Massachusetts Senate and be signed into law by Governor Charlie Baker.

If enacted, the Massachusetts Pregnant Workers Fairness Act will amend the state antidiscrimination law, Massachusetts General Laws, Chapter 151B, to prohibit employers from

• denying a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy, including, but not limited to, 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 an employment opportunity 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 any condition related to the pregnancy, 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 because of a condition related to the person’s pregnancy, 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’s business).

The Act provides that reasonable accommodation may include, but shall not be 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 employer bears the burden of proving undue hardship, which the Act defines as “an action requiring significant difficulty or expense.”

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, if enacted, will not preempt or limit existing legal protections related to gender discrimination or pregnancy. Because the Act’s provisions will be part of Massachusetts General Laws, Chapter 151B, violations will subject employers to the significant employee remedies available under Chapter 151B, which include uncapped compensatory and punitive damages as well as reasonable attorney’s fees and costs.