The Massachusetts Pregnant Workers Fairness Act, enacted in July of 2017, will take effect on April 1, 2018. The Act prohibits Massachusetts employers from denying pregnant women and new mothers reasonable accommodation for their pregnancies and any conditions related to their pregnancies, regardless of whether the pregnancies or related conditions constitute disabilities under existing federal or state discrimination law. The Act also provides increased legal protection against pregnancy-related discrimination in the workplace.

Specific Prohibitions

The Act amends the state antidiscrimination law, Massachusetts General Laws, Chapter 151B, 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 program, enterprise, or 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, retirement, fringe benefits and other applicable service credits when the need for a 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 including, but not limited to, lactation or the need to express breast milk for a nursing child”;
• requiring an employee affected by pregnancy or related conditions to “accept an accommodation that the employee chooses not to accept, if that 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 for the known conditions related to the employee’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, without undue hardship on the employer’s program, enterprise, or business”; or
• refusing to hire a person who is pregnant because of the pregnancy or related condition, including, but not limited to, lactation or the need to express breast milk for a nursing child, provided such person is capable of performing the essential functions of the position with a reasonable accommodation, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business.

Required Forms of Reasonable Accommodation

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 attend to a pregnancy complication or 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) a modified work schedule; provided, however, that an employer shall not be required to discharge or transfer an employee with more seniority or promote an employee who is not able to perform the essential functions of the job with or without a reasonable accommodation.”

As stated above, the Act provides that an employer can deny a requested accommodation if it would impose an undue hardship on the employer’s program, enterprise, or business. 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 needed accommodation; (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 and the number, type and location of its facilities; and (iv) the effect on expenses and resources or any other impact of the accommodation on the employer’s program, enterprise or business.”

The Act requires the employer and employee or prospective employee to “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.” Notably, 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; (3) limits on lifting more than 20 pounds; and (4) private non-bathroom space for expressing breast milk.

Notice Requirements

The Act imposes notice requirements on employers. Employers must provide written notice to employees of the right to be free from discrimination due to pregnancy or a condition related to pregnancy, including the right to reasonable accommodation, “in a handbook, pamphlet or by other means of notice” no later than April 1, 2018. Also, beginning April 1, 2018, employers must provide written notice of employees’ rights under the Act to (i) new employees at or prior to the start of employment and (ii) any employee who notifies the employer of a pregnancy or a pregnancy-related condition within 10 days after such notification from the employee.

Legal Exposure

Employers that violate the Act by failing to provide required reasonable accommodation or by taking prohibited adverse action in violation of the Act face significant potential legal liability. Because the Act’s provisions are incorporated into Massachusetts General Laws, 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.

In advance of the Act’s April 1, 2018, effective date, employers may want to take steps now to comply with the Act’s notice requirements and ensure that all human resource professionals and managers who respond to employee requests for accommodations are fully aware of employer obligations under the Act.