MCAD Issues Guidance on MA Pregnant Workers Fairness Act

pregnant woman, MA Pregnant Workers Fairness ActOn January 23, 2018 the Massachusetts Commission Against Discrimination (MCAD) issued its Guidance on Pregnant Workers Fairness Act (PWFA). The Act, which goes into effect April 1, 2018, expressly prohibits employment discrimination on the basis of pregnancy and pregnancy-related conditions. The Greater Boston Chamber of Commerce broke down both the employee and employer rights and responsibilities under the new law…

Who the law applies to:
Employers with six or more employees.

What the law does:
The Pregnant Workers Fairness Act makes it unlawful for an employer in Massachusetts to discriminate against an employee due 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. The law updates MGL Chapter 151B, the Massachusetts anti-discrimination law to include these new provisions.

Specifically, the PWFA makes it unlawful to:

  1. Take adverse action or retaliate against an employee who requests or uses a reasonable accommodation. This includes failing to reinstate the employee to the original employment status or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits when the need for reasonable accommodation ceases.
  2. Deny an employment opportunity to an employee if the denial is based on the need of the employer to make a reasonable accommodation to the known conditions related to the employee’s pregnancy.
  3. Require a pregnant employee or employee with a pregnancy related condition to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job.
  4. Require an employee to take leave if another reasonable accommodation may be provided to the known conditions related to the employee’s pregnancy or need to pump without undue hardship on the employer.
  5. Refuse to hire a person who is pregnant because of the pregnancy or because of a condition related to the person’s pregnancy such as breast milk expression; provided that the person is capable of performing the essential functions of the position with reasonable accommodations and that the reasonable accommodation would not impose an undue hardship on the employer.

The law also sets up a process for a pregnant employee or pregnant prospective employee, or an employee or prospective employee with a pregnancy related condition to engage with an employer in establishing reasonable accommodations.Upon the request of an accommodation from the employee or prospective employee, the employee and employer must engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation to enable the employee to perform the essential functions of the position.

What is a reasonable accommodation?
Under the law, reasonable accommodations include, but are not limited to:

  • More frequent or longer paid or unpaid breaks
  • Time off to attend to a pregnancy complication or recover from childbirth with or without pay
  • 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
  • Modified work schedule

When can an employer deny a reasonable accommodation?
An employer can only deny a reasonable accommodation for an employee’s pregnancy or condition related to the employee’s pregnancy, including but not limited to lactation or the need to express breast milk for a nursing child, if the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise or business.

Undue Hardship: Under the law, the employer has the burden of proving undue hardship, which is defined as an action requiring significant difficulty or expense. In determining undue hardship, employers must consider the following factors:

  • The nature and cost of the needed accommodation
  • Overall financial resources of the employer
  • The overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities
  • The effect on expenses and resources or any other impact on the employer’s program, enterprise or business

Documentation:
Employers may require documentation about the need for a reasonable accommodation from an appropriate health care professional, unless it is for:

  • More frequent restroom, food or water breaks during pregnancy
  • Seating
  • Limits on lifting over 20 pounds
  • Private non-bathroom space for expressing breast milk

If an employee requests an extension of the originally agreed upon accommodation, an employer may require documentation.

Other employer responsibilities:

  • The law requires employers to distribute a written notice to their employees that details their right to be free from discrimination in relation to pregnancy or a condition related to the employee’s pregnancy, including lactation or the need to express breast milk for a nursing child, including the right to reasonable accommodations for conditions related to pregnancy pursuant to the new law.
  • The notice must be provided in a handbook or other means of notice to all employees including to:
    • new employees at or prior to the commencement of employment
    • an employee who notifies their employer of a pregnancy or a condition related to the employee’s pregnancy not more than 10 days after such notification

The new law takes effect on April 1, 2018. For more information, view the Massachusetts Commission Against Discrimination (MCAD) Guidance on Pregnant Workers Fairness Act here.


The information provided in this alert is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients. This is not legal advice. No client-lawyer relationship between you and our lawyers is or may be created by your use of this information. Rather, the content is intended as a general overview of the subject matter covered. Rogers & Gray Insurance Agency is not obligated to provide updates on the information presented herein. Those reading this alert are encouraged to seek direct counsel on legal questions.


Source: Greater Boston Chamber of Commerce, Policy Guide: Massachusetts Pregnant Workers Fairness Act

John Turco About John Turco

John Turco is a Vice President and Consultant in Employee Benefits at Rogers & Gray Insurance. John volunteers for the Friendship Home, South Shore Support Services, Prom Angels, Arc of the South Shore, Scituate Animal Shelter, and the Norwell Little League. He also sits on the board for the Emilson YMCA. John and his family reside in Norwell. You can connect with John on LinkedIn or via email.

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