Massachusetts Pregnant Workers Fairness Act Effective April 1, 2018

Posted in Legislative Updates

What is it?

The Massachusetts Pregnant Workers Fairness Act (the Act) requires employers to provide certain accommodations to pregnant workers and to advise an impacted worker of their rights under the Act. We recommend that you review the MCAD guidance at the end of this ALERT in conjunction with any internal policy you have that impacts pregnant employees or employees with a pregnancy-related condition.

Which employers have to comply?

All employers in Massachusetts who have six or more employees.

What does the Act prohibit?

The Act is primarily written from the point of view of what an employer cannot to. For example, it is unlawful for an employer to:

  1. deny 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 if the employee requests such an accommodation; provided, however, that an employer may deny such an accommodation if the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program;
  2. take 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;
  3. deny an employment opportunity to an employee if the 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;
  4. require an employee affected by pregnancy, or require said employee affected by a condition related to the pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, 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;
  5. require an employee to take a leave 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; and
  6. refuse to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child; provided, however, that the person is capable of performing the essential functions of the position with a reasonable accommodation and that reasonable accommodation would not impose an undue hardship, demonstrated by the employer, on the employer’s program, enterprise or business.

How Is A Reasonable Accommodation and/or Undue Hardship Determined?

Whether an arrangement is a reasonable accommodation is a fact driven analysis that takes into account a multitude of circumstances that assesses an employee’s ability to perform the “essential functions” of the employee’s position. Some examples of reasonable accommodations are: (1) more frequent or longer breaks; (2) time off; (3) providing equipment or seating; (4) temporary transfer to a less strenuous or hazardous job; (5) job restructuring; (6) light duty; (7) private space for expressing breast milk; (8) assistance with manual labor; and (9) a modified work schedule. Employers are not required to discharge or transfer another employee with more seniority, or to promote an unqualified employee, as an accommodation.

An undue hardship, is generally understood to be an action requiring significant difficulty or expense on the part of the employer. Some factors considered include (1) the nature and cost of the needed accommodation; (2) the employer’s financial resources; (3) the overall size of the business; and (4) the effect on expenses and resources of the accommodation on the employer.

Does an employer have to create space to allow for breast lactation?

The employer must provide an employee a private, non-bathroom space to express breast milk or to breastfeed. Examples include, but are not limited to, a private room or office. The space should be free from intrusion by other employees, visitors, and the public. The space should be convenient enough for the employees that traveling to and from the space does not materially impact an employee’s break time.

There Is a New Employer Notice Requirement….

  1. Employers must provide written notice to….

Current and New Employees: Written notice must be distributed by an employer to its employees, both current and new employees going forward about the employee’s  right to be free from discrimination in relation to pregnancy or a condition related to the employee’s and the right to reasonable accommodations for conditions related to pregnancy

  1. Pregnant Employees:

Notice must be provided to any pregnant employee or an employee with a pregnancy related condition, such as the need for breast feeding, within 10 days of the employer being notified by the employee.

  1. Form of the Notice:

The notice shall be provided in a handbook, pamphlet or other means of notice to all employees. “Other mans” is broad language but it should be a form of Notice that is reasonably assured to result in delivery of the notice to the employee.

Has Massachusetts created a model notice to use?

Not yet. For now, we recommend using the 2 page “MCAD Guidance” found in the resource link at the end of this alert. 

What is the penalty for noncompliance?

The employer can be sued at the Massachusetts Commission Against Discrimination following the filing of a complaint by an employee. The employee may have other remedies available as well under FMLA, the ADA and the federal Pregnancy Discrimination Act.

 

Additional Resources:

The law: Massachusetts Pregnant Workers Fairness Act - Session Law

MCAD Guidance/FAQ Booklet(Updated February 2017):

MCAD Guidance on Pregnant Workers Fairness Act (PDF 24.28 KB)

MCAD Q&A on Pregnant Workers Fairness Act (PDF 71.59 KB)

 

 

 

 

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Marsh & McLennan Agency LLC shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change.

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