Effective April 1, 2018, the PWFA amends G.L. c. 151B § 4, the Massachusetts employment anti-discrimination statute. The PWFA expressly prohibits employment discrimination based on pregnancy or pregnancy-related conditions, including but not limited to lactation and the need to express breast milk for a nursing child. The PWFA also makes it unlawful for Massachusetts employers to deny a reasonable accommodation for an employee’s pregnancy or pregnancy-related condition if the employee requests an accommodation and such accommodation would not impose an undue hardship on the employer. The Massachusetts Commission Against Discrimination (MCAD), which enforces G.L. c. 151B § 4, has released MCAD Guidance on Pregnant Workers Fairness Act (the MCAD Guidance) as well as an MCAD Q&A: Pregnant Workers Fairness Act (MCAD Q&A).
While many employers are already subject to other laws that prohibit discrimination based on sex (e.g., Title VII of the Civil Rights Act of 1964), pregnancy (e.g., the Pregnancy Discrimination Act), and pregnancy-related conditions to the extent that they constitute a disability (e.g., the Americans with Disabilities Act), the PWFA goes beyond the requirements of those laws in certain respects and imposes additional obligations on employers. The PWFA has a wider breadth than its name suggests, as it offers protections not just to all pregnant employees, but to all employees with pregnancy-related conditions. Pregnancy-related conditions include post-pregnancy-related conditions, such as lactation and the need to express breast milk.
What’s Prohibited Under the PWFA
At its core, the PWFA prohibits employers from discriminating against employees due to pregnancy or a pregnancy-related condition. In addition, employers cannot:
- Take an adverse action against an employee (e.g., fire, demote, discipline, retaliate against) or deny an employment opportunity to an employee who requests or uses a reasonable accommodation;
- Require an employee to accept a particular accommodation, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job;
- Require an employee to take a leave of absence (e.g., disability or parental leave) if another reasonable accommodation would allow the employee to perform the essential functions of the job without undue hardship to the employer; or
- Refuse to hire a person who is pregnant because of the pregnancy or a pregnancy-related condition, if the applicant can perform the essential functions of the job with a reasonable accommodation that would not impose an undue hardship on the employer.
What’s Required Under the PWFA
The PWFA requires employers to:
- Grant Reasonable Accommodations. Employers must grant an employee a reasonable accommodation for an employee’s pregnancy or pregnancy-related condition, unless doing so would impose an undue hardship on the employer.
- Engage in the Interactive Process. Employers must communicate with an employee or applicant who requests an accommodation by engaging in a timely, good faith and interactive process to determine whether a reasonable accommodation exists that will allow the employee or applicant to perform the essential functions of the job.
- Provide Written Notice. Employers must provide a written notice to all employees of their right to be free from discrimination due to pregnancy or a condition related to pregnancy, including the right to reasonable accommodations for conditions related to pregnancy. This written notice is to be provided by April 1, 2018, and can be in a handbook, pamphlet, or other means of notice (such as emailing or handing a hard copy to employees). An employer with a handbook could, for instance, circulate the MCAD Guidance by email and subsequently revise the handbook to include a policy consistent with the form and style of the employer’s handbook that includes the required elements. Employers must also provide written notice to all new hires at or prior to the start of employment, and to any employee who notifies the employer of a pregnancy or a pregnancy-related condition no more than 10 days after such notification. Employers may use the MCAD Guidance as the written notice, or they may draft their own notices so long as they convey employees’ right to be free from discrimination and the right to a reasonable accommodation.
Meaning of Pregnancy-Related Condition
The PWFA clearly states that pregnancy-related conditions include lactation and the need to express breast milk. The MCAD explains in its Q&A that a “condition related to pregnancy” can occur during or after pregnancy. The MCAD also cites morning sickness as a pregnancy-related condition and advises that a pregnant employee who suffers from morning sickness may be entitled to a reasonable accommodation of starting her workday later than her usual start time.
Meaning of Reasonable Accommodation
The PWFA provides a non-exhaustive list of nine examples of what may constitute a reasonable accommodation:
- More frequent or longer breaks
- Time off to attend to a pregnancy complication or recover from childbirth
- Modified 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
- Modified work schedule
Importantly, employers are not required to discharge or transfer another employee with more seniority or promote an unqualified employee as an accommodation.
Meaning of Undue Hardship
The PWFA defines “undue hardship” as an action that would require “significant difficulty or expense.” Employers are not required to provide a reasonable accommodation that would create or impose an undue hardship. Employers have the burden of proving undue hardship. The following factors must be considered in determining whether undue hardship exists: (1) the nature and cost of the needed accommodation; (2) the employer’s financial resources; (3) the overall size of the business; and (4) the effect of the accommodation on the employer’s expenses and resources.
Determining whether an undue hardship exists is a fact-specific analysis, and employers should respond to each request for a reasonable accommodation by engaging in an interactive process to determine whether a reasonable accommodation exists that will allow the employee to perform the essential functions of the job without imposing an undue hardship on the employer.
Documentation of Need for Reasonable Accommodation
The type of reasonable accommodation requested by an employee determines whether an employer can require the employee to provide supporting medical documentation of the need for the accommodation. The PWFA prohibits employers from requiring any documentation regarding requests for the following accommodations:
- More frequent restroom, food or water breaks
- Limits on lifting more than 20 pounds
- Private non-bathroom space for expressing breast milk
If an employee asks for any other reasonable accommodation besides the four accommodations listed above, the employer may require the employee to provide medical documentation from a healthcare provider or rehabilitation professional about the need for a reasonable accommodation. An employer may also require documentation if an employee requests to extend the accommodation beyond the originally agreed to accommodation.
Breaks to Breastfeed or Express Breast Milk
Many employers are already required to provide reasonable break time and a private location other than a bathroom for non-exempt employees to express breast milk for one year after the child’s birth pursuant to the 2010 Patient Protection and Affordable Care Act, which amended the Fair Labor Standards Act. The PWFA, however, requires all Massachusetts employers to provide an employee, upon request, a private, non-bathroom space for expressing breast milk, unless doing so would be an undue hardship to the employer.
Breaks to breastfeed or express breast milk may be paid or unpaid. However, the MCAD Q&A explains that if an employer provides paid breaks to employees, the employer must allow an employee to use those paid breaks to breastfeed or express breast milk. In addition, the MCAD Q&A advises that if an employee has a private, non-bathroom space in which to work, and is able to work while breastfeeding or expressing breast milk, the employee may choose to continue working while doing so in order to avoid taking an unpaid break.
The MCAD Q&A also urges employers to exercise caution when determining whether they can legally reduce an employee’s pay or benefits where the employee has worked less than a normal day or shift because of paid or unpaid breaks. The PWFA prohibits employers from taking an adverse action against an employee who requests or uses a reasonable accommodation, such as a break to express breast milk. The MCAD Q&A explains that if an employer generally allows its employees to take breaks without loss of pay or benefits, then the employer would likely violate the PWFA by reducing the pay or benefits of an employee who takes breaks to express breast milk.
Employees who believe that they have been discriminated against on the basis of pregnancy or a pregnancy-related condition may file a formal complaint with the MCAD within 300 days of the discriminatory act.
What Employers Need to Do Now
- Employers must provide written notice to all Massachusetts employees of their rights under the PWFA. Employers may do so by emailing or providing hard copies of the notice. Employers that maintain employee handbooks may do so by updating their handbooks to include the notice. The MCAD Guidance may be used for the written notice.
- Employers must also provide written notice to (1) all new employees at or prior to the start of employment, and (2) to any employee who notifies the employer of a pregnancy or a pregnancy-related condition, within 10 days after such notification.
- Employers should assess whether they currently have a private, non-bathroom space for expressing breast milk and, if not, consider creating one.
- Employers should ensure that their human resources and management personnel are informed about the PWFA’s requirements and understand the employer’s obligation to engage in an interactive process with an employee who requests a reasonable accommodation.
If you have any questions or need assistance in complying with the PWFA, please contact a Goodwin employment law specialist.