COMPLIANCE ALERT: Massachusetts Pregnant Workers Fairness Act notice requirement
The Massachusetts Pregnant Workers Fairness Act (PWFA) was signed into law in July 2017; it provides various protections for applicants and employees who are pregnant or lactating. The law requires that employers provide notice to their workers by April 1, 2018, and goes into effect on that date.
“Substantively, there isn’t too much that changes from current ADA/FMLA standards, as pregnant employees have protections under existing federal and state anti-discrimination laws,” says Carly Fallon, Director of Human Resources at CheckWriters.
“However, this act does clarify and expand upon the rights of pregnant employees with respect to the workplace accommodations they must be afforded.”
The PWFA requires that all employers in Massachusetts, regardless of size, make reasonable accommodations for employees who are pregnant or lactating. Although not an exhaustive list, the PFWA specifically identifies the following as reasonable accommodations:
- More frequent or longer paid or unpaid breaks;
- Time off (with or without pay) to attend to a pregnancy complication or recover from childbirth;
- 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;
- A modified work schedule.
Employers who receive a request for an accommodation must engage in an interactive process with the applicant or employee to determine if they can provide the requested accommodation or if there are other alternatives that would enable the employee to perform the essential functions of their job.
Employers do not need to provide accommodations if doing so would cause an undue hardship. An undue hardship is defined as something that would create significant difficulty or expense. When evaluating whether an accommodation creates an undue hardship, employers should consider a number of factors listed in the PWFA, including the nature and cost of accommodation and the employer’s overall financial resources.
Employers may ask for documentation from a health care professional regarding the need for an accommodation, except when the request is for one or more of the following: more frequent restroom, food, or water breaks; seating; a lifting limitation of more than 20 pounds; and private non-bathroom space for expressing milk. An employer may not require documentation for these accommodations, and they are unlikely to cause a legitimate undue hardship.
The PWFA explicitly prohibits the following types of discrimination against pregnant or lactating applicants or employees:
- Adverse employment action because an accommodation was requested or used;
- Denial of an employment opportunity based on the need for a reasonable accommodation;
- Requiring an employee to accept an accommodation they do not want if it is not necessary to complete the essential functions of their job;
- Requiring an employee to take leave when a reasonable accommodation is available;
- Refusing to hire an applicant because of pregnancy or a known condition related to pregnancy, including lactation.
Employers must inform employees of their rights under the PWFA through a handbook policy or other written notice by April 1, 2018; employees who are hired after that date must be provided with notice prior to the start of employment. This notice must also be provided to each employee who informs the employer of their pregnancy or related condition, including lactation, within 10 days of that notification. A compliant notice created by the Massachusetts Commission Against Discrimination can be found here.
Employers in Massachusetts should ensure that all levels of management are made aware of this law.