By Beth O’Neal, Esq.

I understand that there have been some changes to the regulations surrounding the treatment of pregnant employees. I want to be sure that our policies are in line with the new laws – can you provide an overview?

Th­e Pregnant Workers Fairness Act, signed into law by Governor Baker last July, goes into effect on April 1, 2018. ­The PWFA 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, 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 under federal law. Clearly, the PWFA 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 PWFA 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 PWFA, 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 PWFA 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 PWFA 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 PWFA 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 PWFA prohibits several practices by an employer. An employer may not:

  • Take an adverse action against a pregnant employee or an employee with a pregnancyrelated 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 PWFA requires employers to ensure that its employees have written notice of their rights under the PWFA. 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 PWFA 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 then again 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 PWFA

Employees will have all of the remedies provided under the Massachusetts antidiscrimination 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 and filing suit against an employer. Th­e MCAD has issued guidance and a Q&A document which provides additional clarification on the employer’s responsibilities under the Act, which is available on its website at https://www.mass.gov/service-details/mcadguidance-on-the-pregnant-workers-fairness-act.

How to Comply

Employers should update their antidiscrimination policies and provide supervisors and managerial staff with training regarding employees’ rights under the PWFA. Th­ey should also take affirmative steps to evaluate the types of accommodations employees most likely will request under the PWFA 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 PWFA 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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