by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
July 31, 2017
The move toward significant workplace protections for pregnant employees continues state by state. On July 27, 2017, Massachusetts Governor Charlie Baker signed House Bill 3680 establishing the Massachusetts Pregnant Workers Fairness Act.
Massachusetts joins 15 other states and Washington, D.C. with similar protections for pregnant employees. These laws typically provide protections well beyond existing protections under the Americans with Disabilities Act, in that they do not require the employee to be disabled by the pregnancy in order to receive a reasonable accommodation.
The Massachusetts Act, effective April 1, 2018, provides broad protections for employees and prospective employees who are pregnant or have conditions related to pregnancy. Key provisions include the following:
Employers cannot deny an employee’s request for a reasonable accommodation due to an employee’s pregnancy or condition related to pregnancy, including lactation or expressing breast milk.
Employers must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations to enable employees to perform the essential functions of their jobs.
Employers can require documentation to support a request for a reasonable accommodation. The Act identifies a broad list of types of health care providers who can supply the documentation, including not just physicians but also a variety of other medical professionals, assistants, and therapists.
Documentation cannot be required for employee requests for: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.
The employer can deny an employee’s request if it can show that the accommodation would impose an undue hardship, defined as significant difficulty or expense. Factors to consider include the nature and cost of the requested accommodation, the financial resources, size, and facilities of the employer’s business, and the impact of the requested accommodation on the employer’s expenses, resources, or other impact on the employer’s business.
Employers cannot require an employee to accept an unnecessary accommodation, including a forced leave of absence.
The Act prohibits discrimination and retaliation against a pregnant employee or prospective employee in hiring and in terms and conditions of employment, or for requesting an accommodation.
Employers must provide written notice of employees’ rights under the Act, including the right to reasonable accommodations for conditions related to pregnancy. Required notices include a notice of the rights under the Act in an employee handbook, notice to all new employees upon starting employment, notice to existing employees on or before January 1, 2018, and notice to an employee within 10 days of notification to her employer of her pregnancy and/or her need to express breast milk for a nursing child.
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].