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The Pregnant Workers Fairness Act is in Effect: Is Your Company in Compliance?

Written by: Charla Bizios Stevens

Published in NEHRA News (April 26, 2018)

The Massachusetts Pregnant Workers Fairness Act (“PWFA”) went into effect on April 1, 2018.  The purpose of the law is to provide greater workplace protections to pregnant women and nursing mothers.  The legislation prohibits employers from discriminating against employees because of “pregnancy or a condition related to pregnancy,” which is defined to include the need to express breast milk for a nursing child.  Prohibited discrimination could include refusal to hire or promote on the basis of pregnancy.  Similarly, employers are precluded from using pregnancy as the basis for any adverse employment action such as termination, demotion , or reassignment to a less desirable position, assignment, or shift.  Employers also cannot require that a pregnant or nursing employee accept an accommodation, such as a leave of absence, if it is unnecessary to enable to her to perform the essential functions of her job.   
 
It also prohibits employers from denying pregnant women and nursing mothers reasonable accommodations  unless the accommodation would impose an undue hardship upon the employer.  The PWFA explicitly sets out examples of accommodations which would be considered reasonable:
 
More frequent or longer paid or unpaid breaks
Time off to 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
Break time
Private non-bathroom space for expressing breast milk
Assistance with manual labor
Modified work schedules
 
Upon a request for an accommodation from a pregnant or nursing employee, the employer and employee must engage in a timely, good faith and interactive process to determine if there is a reasonable accommodation to enable the employee to do her job.  Employers should be familiar with this process as it is the same one employers must follow under the Americans with Disabilities Act (“ADA”)  when an employee with a non-pregnancy related disability requests an accommodation.  As part of that process, the employer may request documentation from the employee’s healthcare provider to support the need for the accommodation unless the requested accommodation is for seating, limits on lifting over twenty pounds, more frequent restroom, food or water breaks, or private non-bathroom space for expressing breastmilk.
 
The protections provided by the PWFA are expansive and are more extensive than what is typically provided under the ADA or state maternity leave laws.  Pregnancy in and of itself has not been considered a “disability” under the ADA or the Massachusetts anti-discrimination law.  
 
Employers should be mindful of the fact that the PWFA also contains a notice requirement.  All  employers are required to provide notice of the right to be free from discrimination due to pregnancy or a pregnancy-related condition, including the right to reasonable accommodations, to all employees.  This notice should be contained in the company handbook and/or disseminated in the way in which other legally required notices are provided to employees.  The law also requires businesses to give the notice to new employees at or prior to the start of employment and to any employee who notifies the employer of a pregnancy or related condition within ten days of such notification.

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