Massachusetts: What to Know About the Pregnant Workers Fairness Act

In July of 2017, the state of Massachusetts passed the Pregnant Workers Fairness Act (PWFA), to protect workers during and after a pregnancy.

Many other states and jurisdictions have also passed similar laws. The PWFA in particular has two key provisions:

• Banning discrimination against employees on the basis of pregnancy or a pregnancy-related condition

• Requiring employers to make reasonable accommodations to employees for pregnancy and pregnancy-related conditions

The PWFA will go into effect on April 1st, 2018 and applies to employers in Massachusetts with six or more employees. Below, we run through some of the key provisions of the new law.

What are the requirements of the PWFA?

The PWFA requires employers to provide a reasonable accommodation for an employee’s pregnancy and pregnancy-related conditions, unless the employer can demonstrate that the accommodation would pose an undue hardship. The PWFA defines an undue hardship as an accommodation “requiring significant difficulty or expense.”

Employers will be required to engage in a timely, interactive process to determine an effective reasonable accommodation that will enable the employee (or prospective employee) to perform the essential function of the job.

Reasonable accommodations may include:

1. Modified work schedules

2. Temporary transfer to a less strenuous/hazardous positions

3. Assistance with manual labor

4. Job restructuring

5. Light duty

6. Modifying or acquiring equipment or seating

7. Time off to attend to a pregnancy complication or recover from childbirth (paid or unpaid)

8. More frequent or longer breaks (paid or unpaid)

9. Private non-bathroom space for expressing breast milk

The PWFA bars employers from denying employment opportunities of a pregnant employee due to her pregnancy, or retaliating against a pregnant employee who requests an accommodation.

Employers also have to provide employees with written notice of the PWFA, outlining the right:

1. To be free from discrimination on the basis of pregnancy or a related condition (including lactation or he need to express breast milk for a nursing child)

2. Reasonable accommodations during the employee’s pregnancy.

The notice must be provided in a handbook or other means of notice to:

1. New employees: at or before they begin employment

2. Existing employees: by April 1st, 2018

3. Any employee who notifies her employer of her pregnancy or a related condition: within 10 days of the notification

What steps should I take now?

• Double Check Your Hiring Practices - When you’re hiring a new candidate, do not ask any job applicants about marital status, family planning, or pregnancy. Avoid asking this of employees as well. Although those protections already existed under Title VII, it’s an important reminder.

• Update Your Company Policies - Make sure your company handbook and policies comply with the new law. Update your handbook provisions regarding anti-discrimination and retaliation to specifically include protections for pregnancy and pregnancy-related conditions (including lactation or the need to express breast milk for a nursing child). That includes adding what constitute reasonable accommodations, as well as guidance for engaging in the interactive process of accommodation.

• Train Your Managers and HR Team - Once you’ve updated your company policies, spend time training your HR team and any other relevant managers about the new law.

• Provide Notice to Employees - Make sure to distribute your updated employee handbook/policies (which include the PWFA notice) to current employees by April 1st, 2018. You’re also required to provide notice to any new hires on their first day of employment, and to any employee who notifies you of her pregnancy or pregnancy-related condition, within a window of 10 days of such notification by the employee.

Lastly, read the law in-depth to make sure you’re getting it right the first time around. It’s best to consult with an employment lawyer on how to correctly implement and communicate the PWFA.