As expected, on July 27, 2017, Massachusetts Governor Charlie Baker signed into law the Pregnant Workers Fairness Act, which expands protections for pregnant employees in Massachusetts. The new protections, which are being inserted into General Laws Chapter 151B––the Massachusetts anti-discrimination statute––prohibit employers from discriminating against employees on the basis of “pregnancy or a condition related to pregnancy, including but not limited to, the need to express breast milk for a nursing child.”
Under the new law, which takes effect April 1, 2018 (coincidentally, nine months from now), Massachusetts employers are prohibited from denying reasonable accommodation to a pregnant employee who requests such an accommodation, unless the employer can demonstrate that such an accommodation would impose an undue hardship on its business. Employers are likewise prohibited from terminating or refusing to hire someone because of their pregnancy.
For purposes of the new law, “reasonable accommodation” may include, but is not limited to: more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and non-bathroom space for expressing breast milk, assistance with manual labor, or a modified work schedule.
The term “undue hardship” means an action requiring significant difficulty or expense. It is the employer’s burden to prove that a requested accommodation constitutes an undue hardship. Factors to be considered include (i) the nature and cost of the requested accommodation, (ii) the employer’s overall financial resources, (iii) the overall size of the business, and (iv) the impact of the requested accommodation on the employer’s business.
As under the federal Americans With Disabilities Act, the employer and employee are required to engage in a timely, good faith interactive dialogue to determine an effective reasonable accommodation that will allow the employee to perform the essential functions her job. Employers are permitted to request documentation from a healthcare provider to support the employee’s request for accommodation; however, employees are not required to provide such documentation for the following accommodations: (i) more frequent restroom, food, or water breaks, (ii) seating, and (iii) limits on lifting more than 20 pounds.
Employers are required to provide written notice to employees of their right to be free from pregnancy discrimination, either in an employee handbook or by some other means. This include providing such information to any employee who notifies the employer of a pregnancy or a condition related to pregnancy within 10 days of such notification. While the new law does not become effective for nine months, employers should prepare to amend their employee handbooks and other policies to incorporate these new protections.
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