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MA Pregnant Workers Fairness Act: Part II

Now that the Massachusetts Pregnant Workers Fairness Act (PWFA) went into effect April 1, 2018, it is time for employers to confirm that they are taking steps to ensure compliance with the PWFA.

As discussed in detail in our October 2017 post, the PWFA amends the Massachusetts anti-discrimination statute, (G. L. c. 151B, §4), which applies to all employers with six or more employees. Specifically, the PWFA:

  1. Prohibits employment discrimination on the basis of pregnancy or a pregnancy-related condition (e.g., morning sickness, lactation, or the need to express breast milk);
  2. Imposes strict notice rights on Massachusetts employers to inform its employees of these rights; and
  3. Requires employers to provide a private, non-bathroom pumping space for employees who need to express breast milk.

The Massachusetts Commission Against Discrimination (MCAD) has released additional guidance for employers, and this blog post outlines the key steps necessary to meet employers’ PWFA obligations.

Required Notices

Employers must provide their Massachusetts employees with written notice of their rights under the PWFA on three separate occasions:

  • To all employees by April 1, 2018;
  • To all new employees at or prior to the commencement of employment; and
  • To pregnant employees, within 10 days of being notified of a pregnancy or condition related to pregnancy.

Notice can be provided in a handbook, or by other means (including electronically) – but must inform the employee of two key provisions of the statute: (1) their right to be free from discrimination related to pregnancy or a condition related to pregnancy, including but not limited to, lactation or the need to express breast milk for a nursing child; and (2) their right to reasonable accommodations for conditions related to pregnancy.

Including other information such as location of a nursing room, particular Human Resources contacts or reporting procedure may also prove helpful in implementing a smooth transition of PWFA compliance in the workplace.

Reasonable Accommodations + Documentation

When an employer receives a request for an accommodation due to a pregnancy-related condition, it should engage in a timely, good faith interactive process (as it would under the ADA) to explore a reasonable accommodation that allows the employee or applicant to perform the essential functions of her job. “Timely” in this context means promptly.

The law intends to ensure that certain accommodations are readily available for covered employees. As such, employers cannot require documentation for the following accommodations:

  • More frequent restroom, food or water breaks;
  • Seating;
  • Limits on lifting more than 20 pounds; and
  • A private, non-bathroom pumping space.

While employers are allowed to request documentation for other accommodations, the PWFA specifies that such documentation does not need to come from a physician – the law provides a list of varied health care professionals to account for the variety of treatments pregnant employees receive, and from whom (such as midwives, lactation consultants and psychologists). Employers may only deny the accommodation if they can prove it would cause an undue hardship, which is typically a tall task for employers.

Action Items for Employers

Most immediately, employers should ensure they have met the proper notice requirements for April 1, 2018. This step includes updating new hire materials, handbooks or other notice forms and distributing them to all employees.

Going forward, employers must also identify a private, non-bathroom pumping space. This means a space with a lock on the door that is free from intrusion by other employees, visitors or the public.  The space should be equipped with an electrical outlet, a table or other surface to hold a breast pump, and seating.  Although this space is not required unless and until the need arises, it must be provided promptly when requested. Accordingly, it is a best practice to set up the space in advance or be ready to do so as soon as it becomes necessary.

Training is also key. Managerial and human resource employees need to know what steps to take when they are informed of a pregnancy or pregnancy-related condition – both to provide notice and to navigate the accommodation process, which can be tricky. For example, there may be times where there are multiple employees who are pregnant or nursing and in need of similar accommodations at the same time within one company. Employers should consult with counsel about how to appropriately engage with each employee to find the reasonable accommodation that enables them to perform the essential functions of their job.

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Emma counsels clients on a wide variety of employment issues and litigates employment disputes before state and federal courts and administrative agencies. Her litigation practice includes restrictive covenant agreements; discrimination, sexual harassment, and retaliation claims; and wage and hour compliance.