On Thursday, July 27, 2016 Governor Baker signed the “Pregnant Workers Fairness Act.” The new statute prohibits an employer from discriminating or retaliating against an individual due to pregnancy or a condition related to pregnancy, including lactation or the need to express breast milk for a nursing child, by refusing to employ, or refusing to comply with such individual’s request for reasonable accommodation in the workplace.
The new pregnancy and nursing mother anti-discrimination law the governor signed passed both the House and Senate unanimously. Associated Industries of Massachusetts, a major business trade association which opposed previous versions of the bill supported the new legislation.
Notice to employees by January 1, 2018
Employers are now required to give written notice in a handbook or notice by other means of the new right for employee’s to be free from discrimination in relation to pregnancy or a condition related to the employee’s pregnancy including lactation, or the need to express breast milk for a nursing child. The handbook or notice also must advise of such employees’ right to reasonable accommodations for conditions related to pregnancy. The required information must given to:
- new employees at the commencement of employment;
- existing employees on or before January 1, 2018;
- an employee who notifies the employer of a pregnancy or an employee who notifies the employer of a condition related to the employee’s pregnancy including, but not limited to, lactation, or the need to express breast milk for a nursing child, within 10 days of such notification.
Request from employee triggers interactive process to agree on reasonable accommodations
Under the act, a request by an employee for changes to her working conditions triggers and obligation for 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.”
An employer can require documentation about the need for a reasonable accommodation come from an “appropriate health care or rehabilitation professional” as defined in the act. These professionals may include a: ““medical doctor, a psychiatrist, a psychologist, a nurse practitioner, a physician assistant, a psychiatric clinical nurse specialist, a physical therapist, an occupational therapist, a speech therapist, a vocational rehabilitation specialist, a midwife, a lactation consultant, or another licensed mental health professional authorized to perform specified mental health services consistent with law.”
The employer cannot request documentation if the employee’s request for an accommodation only relates to a request for:
- more frequent restroom, food and water breaks;
- seating; and
- limits on lifting over 20 pounds.
Reasonable accommodations defined in act
The act does not define the term “reasonable accommodation” but does specifies some accommodations deemed reasonable for employees requesting accommodations because of pregnancy or breast feeding. These defined accommodations include:
- more frequent or longer paid or unpaid breaks;
- time off to 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; and
- modified work schedules.
Under the act, however, in making an accommodation an employer cannot be required to discharge any other employee, transfer another employee with more seniority, or promote any employee who cannot perform the essential functions of the job, with or without a reasonable accommodation.
Undue hardship exception for business that can prove material loss from giving an accommodation
An employer can refuse a reasonable accommodation if the accommodation would impose an “undue hardship” on the employer’s business because of significant difficulty or expense in compliance with the employee’s request.
Whether an undue hardship exists for a particular firm claiming the exception, is measured by the statutory factors set out in the act that include:
- the overall financial resources of the employer;
- the overall size of the business of the employer with respect to the number of employees;
- the number, type, and location of its facilities; and,
- the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.
However, if a dispute arises that leads to a legal or administrative proceeding (See below), the employer has the burden to prove the undue hardship.
Prohibited actions against employee asking for a reasonable accommodation
Under the act, employers have specific violations that can result from an employer’s actions toward an pregnant employee or an employee that known conditions related to lactation, or the need to express breast milk for a nursing child.
These specific violations occur if the employer:
(1) takes 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 reasonable accommodations ceases;
(2) denies 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 or postpartum lactation for a nursing child;
(3) require an employee affected by pregnancy or require an employee affected by a lactation condition specified in the act 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;
(4) require an employee to take leave of absence if another reasonable accommodation may be provided 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, without undue hardship to the employer;
(5) knowingly refuse to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy including which shall include, but shall not be limited to lactation, or the need to express breast milk for a nursing child.
New law enforced by the Massachusetts Commission Against Discrimination
The act as passed adds provisions to sections of M.G.L. c. 151B. This general law is the major Massachusetts statute prohibiting discrimination against persons whether by race, religion, color, national origin, sex, or now pregnancy and lactation or the need to express breast milk for a nursing child.
Employees alleging violations of the new provisions added by the Pregnant Workers Fairness Act, may bring a complaint to the Massachusetts Commission Against Discrimination. This agency has broad authority to investigate, prosecute, adjudicate and resolve cases of discrimination. In employment discrimination cases the commission may award back pay, front pay, emotional distress damages, attorney fees and interest. See Agency Checklists’ July 18, 2016 article, “Selling EPLI? Five things agents should to know about the Massachusetts Commission Against Discrimination.”
Massachusetts becomes 22nd state to protect pregnant or breast feeding worker from discrimination
Massachusetts is the 22nd state to adopt protections for pregnant workers as found in the new act. These laws are needed as because most normal pregnancies do not qualify as disabilities under state law. Some temporary conditions resulting from pregnancy are covered by the Americans with Disabilities Act, but it does not provide blanket protection against discrimination.
