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Massachusetts Establishes New Protections for Pregnant Workers

Massachusetts Governor Charlie Baker recently signed into law the Massachusetts Pregnant Workers Fairness Act (“MPWFA”), an act which expands the protection of Massachusetts’s anti-discrimination statute to cover pregnancy and pregnancy-related conditions. Although the MPWFA will not take effect until April 1, 2018, it is important for employers in the Commonwealth to understand the scope of the law and to prepare to implement the MPWFA’s new requirements.

The MPWFA prohibits employers from discriminating against, failing to hire, or terminating a woman because of her pregnancy or a condition related to her pregnancy. Under the new law, employers will be required to provide a reasonable accommodation for an employee’s pregnancy and pregnancy-related conditions unless the employer can demonstrate that the employee’s requested accommodation would pose an undue hardship to the employer. Additionally, employers are prohibited under the MPWFA from requiring an employee to take leave for a pregnancy or pregnancy-related condition if some other reasonable accommodation can be provided without undue hardship to the employer.

The MPWFA requires employers to engage in a timely, good faith interactive process with the employee to determine an effective reasonable accommodation. When an employee makes a request for a reasonable accommodation related to pregnancy, the employer may require documentation from an appropriate health care provider or rehabilitation professional except in certain designated situations. Specifically, an employer may not require documentation for the following accommodations: (1) more frequent restroom, food, or water breaks; (2) seating; (3) limits on lifting over 20 pounds; or (4) private non-bathroom space for expressing breast milk. In addition, the law prohibits employers from requiring a job applicant or employee to accept an accommodation related to pregnancy that the applicant or employee chooses not to accept.

The MPWFA also provides specific examples of reasonable accommodations that may be utilized, including (1) more frequent or longer paid or unpaid breaks; (2) paid or unpaid time off to attend to a pregnancy complication or to recover from childbirth; (3) acquisition or modification of equipment or seating; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty; (7) private non-bathroom space for expressing breast milk; (8) assistance with manual labor; or (9) a modified work schedule.

On or before April 1, 2018, employers must provide written notice to their existing employees of the right to reasonable accommodation for conditions related to pregnancy and the right to be free from discrimination on the basis of pregnancy and pregnancy-related conditions, including lactation. This notice must be provided to new employees at or prior to the commencement of employment. If any employee notifies her employer of her pregnancy or pregnancy-related condition, the employer must provide a copy of this notice within ten (10) days.

Employers should prepare for the MPWFA by revising existing handbook provisions regarding anti-discrimination and retaliation to specifically include protections for pregnancy and pregnancy-related conditions and by ensuring that a private non-bathroom space is available in the workplace for expressing breast milk. Furthermore, employers should review current polices and procedures to evaluate what reasonable accommodations can be made for pregnancy and pregnancy-related conditions, including additional breaks, adjusted seating, leave time, and modified work schedules.

While it remains unclear whether Massachusetts will provide accompanying regulations or further guidance regarding the MPWFA, there is no doubt that the statute itself will necessitate changes for virtually all employers in the Commonwealth.

Copyright 2020 K & L Gates


About this Author

Pomfret. Boston, picture

Mr. Pomfret represents local, regional and national employers in all areas of employment and labor law.  He has significant experience before federal and state courts in employment related litigation defending against discrimination, sexual harassment, wrongful termination, privacy, civil rights, whistleblower, contract, and tort-based claims, as well as enforcing noncompetition and other restrictive covenant obligations.  Mr. Pomfret also has successfully handled numerous administrative proceedings and investigations on behalf of clients before various federal and state agencies,...

Kristi Nickoderm, Labor, Employment, Workplace Safety, KL Gates Attorney

Kristi Nickodem is an associate in the Raleigh office, focusing her practice on labor, employment, and workplace safety. Ms. Nickodem has experience advising employers on a wide variety of labor and employment issues, including employee separations, compliance with the Fair Labor Standards Act and various state wage and hour laws, the provision of reasonable accommodations to employees under the Americans with Disabilities Act, responding to citations issued by the Occupational Safety and Health Administration, and the provision of leave pursuant to the Family and Medical Leave Act and various state and local leave laws, As part of her practice, she also drafts handbooks, policies, employment agreements, and restrictive covenant agreements for employers. 

Ms. Nickodem has helped represent employers in a wide variety of administrative and civil litigation matters, including authoring pleadings, motions, and legal memoranda in matters involving trade secrets, contractual breaches, discrimination claims, and wage and hour issues, Ms. Nickodem also conducts employment due diligence and advises on complex employment compliance issues arising in the context of mergers and acquisitions. She has experience advising clients in a wide variety of industry sectors, including healthcare, technology, financial services, distribution, and manufacturing, Kristi Nickodem is a first year associate in the Raleigh office. Ms. Nickodem focuses her practice on labor, employment, and workplace safety.