On April 1, 2018, the Massachusetts Pregnant Workers Fairness Act (the Act) went into effect, creating several rights and protections for pregnant workers, as well as for workers who have conditions related to pregnancy.  The Act – which applies to employers with six or more employees – affirmatively establishes pregnancy as a protected class under Massachusetts law and protects employees and prospective employees who are pregnant or have a pregnancy-related condition from discrimination and retaliation by employers.  The Act also provides covered individuals with robust rights to reasonable accommodations, as described below.

Now that the Act is in effect, Massachusetts employers should act quickly to provide employees with required notices, update their policies and handbooks, and train management personnel about their obligations under the Act.

Reasonable Accommodation Requirement

As described above, the Act generally applies to employees and prospective employees who are pregnant or who have a condition related to pregnancy. It is important to note that for purposes of the Act, “condition related to pregnancy”  includes, but is not limited to, lactation or the need to express breast milk for a nursing child.  Individuals covered under the Act have the right to a reasonable accommodation for their pregnancy or pregnancy-related condition, provided that the employee or prospective employee is otherwise capable of performing the essential functions of the job.  For example, these accommodations may include:

• More frequent or longer breaks.  According to the Massachusetts Commission Against Discrimination’s (MCAD) interpretive Q&As, these breaks may be paid or unpaid.  However, if the employer allows paid breaks for other reasons, employees must be allowed to use those paid breaks to breastfeed or express milk.

• Time off to attend to a pregnancy complication or recover from childbirth, with or without pay.

• Acquisition or modification of equipment or 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.

• A modified work schedule.

Once an employee has made a request for an accommodation, the employer must engage in a timely interactive process with the employee to determine whether an effective reasonable accommodation exists. In considering the request, employers may generally require documentation about the need for a reasonable accommodation from a health care or rehabilitation professional, unless the proposed accommodation is any of the following: (1) more frequent restroom, food, or water breaks; (2) seating; (3) limits on lifting more than 20 pounds; or (4) private non-bathroom space for expressing breast milk.

Employers are not required to provide an accommodation if they can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business. Similar to the Americans With Disabilities Act (ADA) context, the undue hardship analysis is case-specific and depends on the nature and cost of the requisite accommodation, the employer’s financial resources, the overall size of the business, and the effect that the accommodation would have on the employer.

Notice Requirements

Massachusetts employers have an affirmative duty to provide written notice to employees of their rights under the Act. This notice must be provided in a handbook, pamphlet, or another means of notice provided to all employees. The MCAD has also issued a guidance document that employers may provide to employees to fulfill the notice requirement.

The Act required an initial notice to be given to employees on April 1, 2018, and also requires written notice to be provided to: (1) new employees at or prior to the beginning of their employment; and (2) an employee who notifies the employer of a pregnancy or condition related to the employee’s pregnancy. In the latter instance, the employer must provide written notice within 10 days of receiving an employee’s notification.

Important Steps for Employers

Given that the Act recently took effect, employers will likely start to receive questions and requests related to the new law. As such, it is critical that Massachusetts employers provide the required written notice to all employees (if they haven’t already), as well as update their handbooks, policies, and procedures to reflect the Act’s requirements and employees’ rights thereunder.  Employers should also train relevant managers, supervisors, and HR personnel about their obligations under the Act.

In addition to their obligations under the Act, Massachusetts employers must continue to be mindful of their obligations under the ADA, the Family and Medical Leave Act, and the Massachusetts Earned Sick Time Act, among other laws that may be implicated by an employee’s pregnancy or pregnancy-related condition.