By Beth O’Neal, Esq.

Previous Law At Work articles have addressed the expected increase in the salary level for exempt employees under the Fair Labor Standards Act, a federal law, that was to have gone into effect on December 1, 2016. Had it gone into effect, employers would have been required to pay exempt employees a salary, in order that they were classified and treated, legally, as exempt employees (meaning they are not entitled to overtime), of $921 per week ($47,832 per year), up from $455 per week ($23,660 per year), being nearly double.

However, before the intended effective date, a federal court judge in Texas entered an order, the impact of which was to halt the new salary level from being implemented. The Department of Labor filed an appeal.

Recently, on September 5, 2017, the Department of Labor asked the court of appeals for permission to dismiss its appeal and the court obliged. For now, it appears as if the Department of Labor has given up in the increase in salary it sought to impose on late December 2016. What this means is that for the time being, the law remains what it has been since 2004. That is, to qualify for the FLSA’s “bona fide executive, administrative, or professional capacity” exemption, an employee must: (i) be paid on a salary basis; (ii) receive a salary of at least $23,660 annually; and (iii) in fact perform executive, administrative, or professional capacity duties as defined in the current regulations, which have been in effect since 2004.

Many other things could occur, including that the Department of Labor could start over, in seeking to increase the salary level, which could take years. We will have to wait and see what the Department of Labor does next.

The Massachusetts Pregnant Workers Fairness Act is now the law On July 27, 2017, Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (“Act”) into law. By doing so, Massachusetts joins 21 other states and Washington D.C. in providing protections to pregnant workers. Though the Act does not take effect until April 1, 2018, employers should be aware of what the Act provides and steps they will need to take to insure they are complying with the law.

The Act supplements Massachusetts employment discrimination laws, applicable to employers with six or more employees, by adding pregnant employees and employees with pregnancy-related medical conditions (including breastfeeding) as a protected class with the right to be free from discrimination in the workplace and the right to reasonable accommodations related to pregnancy, childbirth, or related conditions, if such accommodations do not cause an undue hardship on the employer.

Massachusetts employers will be required to accommodate all pregnant workers just as they are required to accommodate employees with disabilities. However, federal law, relative to the accommodation of employees with disabilities, is distinguishable. Under the Americans With Disabilities Act (“ADA”), a normal pregnancy is not considered to be a disability. As a result, only where a pregnant employee has a disability (such as complications related to pregnancy) must an employer accommodate the employee’s disability. Clearly, the Act expands an employer’s reasonable accommodation obligations in that it applies to all pregnant employees, not just those pregnant employees who have disabilities.

Duty to Provide Reasonable Accommodations

The Act addresses the employer’s obligation to provide a reasonable accommodation; what constitutes a reasonable accommodation; and the context for analyzing whether an accommodation is reasonable or not under the test of whether it would constitute an “undue burden.”

Under the Act, a “reasonable accommodation” enables an employee (or prospective employee) to perform essential job functions while pregnant (or while experiencing a condition related to pregnancy). In general, determining the appropriate reasonable accommodation is achieved through an interactive dialogue between the employer and the employee requesting the accommodation (which is the same concept required under the ADA law dealing with employees or applicants with disabilities).

The interactive dialogue requirement contemplates that an employer will engage in a collaborative, good faith process with employees and prospective employees to determine effective and reasonable accommodations.

The Act specifically identifies several reasonable accommodations that may be provided by the employer to the covered employee including:

  • More frequent or longer breaks and/or a modified work schedule
  • Changes to seating/work equipment
  • Temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, and/or assistance with manual labor
  • Time off to attend to a pregnancy complication or recover from childbirth
  • Private, non-bathroom space for expressing breast milk

The Act requires an employer to provide reasonable accommodations unless the employer is able to demonstrate an undue hardship on the employer’s business. Undue hardship may be demonstrated where an employer proves that the requested accommodation would require significant difficulty or expense, taking into consideration relevant factors including the size and resources of the employer; the nature and cost of the accommodation; and the effect on expenses and resources or any other impact of the accommodation on the employer’s business.

The Act does permit an employer to require written documentation from a health care professional demonstrating the need for most accommodations; however, employers cannot require documentation of the need for more frequent breaks, changes to seating, limits on lifting more than twenty pounds, or providing a private, non-bathroom space for expressing breast milk.

Prohibited Actions

The Act prohibits several practices by an employer. An employer may not:

  • Take an adverse action against a pregnant employee or an employee with a pregnancy-related condition who has requested a reasonable accommodation;
  • Deny an employment opportunity to a pregnant employee or an employee with a pregnancy-related condition based on the need to make a reasonable accommodation;
  • Require a pregnant employee or an employee with a pregnancy-related condition to take a leave of absence if another reasonable accommodation may be provided without undue hardship;
  • Require a pregnant employee or an employee with a pregnancy-related condition to accept an accommodation that is not necessary for the employee to perform the essential functions of the job;
  • Refuse to hire a person because that person is pregnant or has a pregnancy-related condition, if the person is capable of performing the essential functions of the job with a reasonable accommodation, unless the accommodation would pose an undue hardship.

Written Notice to Employees

Similar to other Massachusetts laws (including the Sick Leave Law and the Domestic Violence Leave law) the Act requires employers to ensure that its employees have written notice of their rights under the Act. The notice may be provided in a handbook or pamphlet or other means of notice to all employees. Employers must provide written notice of the rights afforded by the Act to all current employees prior to its April 1, 2018 effective date. After the effective date, employers must provide written notice to all new hires prior to their start dates and to any employee if that employee provides notice to the employer of pregnancy or a condition related to pregnancy within 10 days of such notification by the employee, even if the employee had previously received written notice of their rights.

Employee Remedies for Employer’s Violation of Act

Employees will have all of the remedies provided under the Massachusetts anti-discrimination laws to challenge and seek redress for an employer’s violation of the Act. This includes filing a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”), and filing suit against an employer. The MCAD may issue guidance which provides additional clarification on the employer’s responsibilities under the Act, but it is not expected that the MCAD will do so until early 2018.

How to Prepare

Employers should not wait until the Act takes effect to take steps to ensure compliance. In addition to updating antidiscrimination policies and providing supervisors and managerial staff with training regarding employees’ rights under the Act, employers should take affirmative steps to evaluate the types of accommodations employees most likely will request under the Act and carefully consider how to implement those accommodations and whether they may pose an undue burden. Employers also should assess the essential functions of various positions, and whether (and how) an accommodation might permit an employee affected by pregnancy or a pregnancy-related condition to fulfill those functions. Employers will want to make sure that employees have access to private non-bathroom spaces for nursing or expressing breast milk, which the Act considers to be a reasonable accommodation (and which is already required under federal law).

Beth O’Neal, Esq., is a partner in the Boston law firm of Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP. Send questions to moneal@connkavanaugh.com.

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