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Governor Charlie Baker recently signed into law the Pregnant Workers Fairness Act (PWFA), making Massachusetts the latest in a growing number of states to pass such legislation. While laws providing for basic protections of pregnant workers have existed in some form for years, the PWFA significantly expands those protections and requires specific affirmative action on the part of employers.
Specifically, the PWFA adds “pregnancy or a condition related to pregnancy” to the list of protected classes under the Commonwealth’s anti-discrimination act and makes it illegal for an employer to deny a “reasonable accommodation” for an employee’s pregnancy or any condition related to an employee’s pregnancy. Upon notice from an employee that she is pregnant and is seeking an accommodation, the employer must engage in a timely, good faith, and interactive process with the employee to determine effective and reasonable accommodations. The PWFA itself provides a non-exhaustive list of examples of reasonable accommodations, such as more frequent or longer breaks, acquisition or modification of equipment and seating, time off to recover from childbirth, temporary transfer to a less strenuous or hazardous position, job restructuring, and private non-bathroom space for expressing breast milk.
Accommodations may only be denied in situations where they would impose an undue hardship on the employer’s business; with undue hardship being defined as “an action requiring significant difficulty or expense.” It is the employer’s burden to prove an undue hardship. Factors to consider when making a determination of undue hardship include the nature and cost of the accommodation, the overall financial resources of the employer, the size of the business, the number of employees, the number, type, and location of facilities, and the effect of the accommodation on the employer’s expenses and resources. The new law also bars retaliation against employees who request and/or use reasonable accommodations and prohibits employers from denying employment opportunities to an employee or job applicant if such denial is based on the need for reasonable accommodations. Finally, the PWFA contains notice provisions which require employers to notify both current and new employees of their right to be free from pregnancy discrimination under the new law, including the right to reasonable accommodations.
It is important for employers to familiarize themselves with the requirements of the PWFA and to develop policies to ensure compliance. For example, employers may need to update employee handbooks, hold training sessions for management and HR personnel, and establish protocols for engaging in the interactive process of making reasonable accommodation determinations. Employers have until April 1, 2018, when the new law takes effect, to make the necessary changes.
If you have questions about this new law and how it may affect your business, please do not hesitate to contact an employment litigation attorney at Melick & Porter.