By Alexandra Geiger
This summer, Governor Baker signed the Pregnant Workers Fairness Act (PWFA) into law, which guarantees greater protections for pregnant women and nursing mothers in the workplace. The bipartisan bill unanimously passed in both the House and Senate earlier this year.
The PWFA prohibits employers from discriminating against pregnant women and nursing mothers by amending Massachusetts anti-discrimination law to include “pregnancy or a condition related to pregnancy” as protected categories. A “condition related to pregnancy” is defined to include the need to express breast milk for a nursing child. Other protected categories under the anti-discrimination law include race, age, sex, national origin, sexual orientation, ancestry, gender identity, genetic information, and military service.
The PWFA also prohibits employers from denying pregnant women and nursing mothers reasonable accommodations if requested by the employee unless it would impose an undue hardship upon the employer. The law leaves little gray area for employers when it comes to determining what is and is not considered a reasonable accommodation by listing the following examples:
The PWFA also makes it unlawful for an employer to take adverse action against a pregnant or nursing employee who requests or uses a reasonable accommodation by, for example, failing to reinstate the employee to her original employment status or an equivalent position. It is also unlawful for an employer to refuse to hire a pregnant woman or nursing mother who is capable of performing the essential functions of the position with a reasonable accommodation or deny employment opportunities to an employee if such denial is based on the need to make a reasonable accommodation due to pregnancy or a related condition. 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 the job.
Under the law, 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 when an employee with a non-pregnancy related disability requests an accommodation. As part of that process, the PWFA allows employers to 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, or private non-bathroom space for expressing breastmilk.
The PWFA also requires employers 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 and to any employee who notifies the employer of a pregnancy or related condition within ten days of such notification.
Until now, no federal or state law has granted such expansive protections for pregnant or nursing employees as the PWFA. Pregnancy in and of itself has not been considered a “disability” under the Americans With Disabilities Act or Massachusetts anti-discrimination law. This means that, without an additional related medical condition, employers have not been required to provide pregnant employees with reasonable accommodations. Similarly, while the Affordable Care Act amended the Fair Labor Standards Act to require certain employers to provide a reasonable break time and a private space to express breast milk for nursing mothers, that mandate does not apply to all employees.
In enacting the PWFA, Massachusetts joins eighteen other states with similar laws protecting pregnant workers. The legislation is part of a growing trend by states to implement additional protections and benefits to expecting mothers and new parents that are not present under existing federal and state laws. Five states (California, Rhode Island, Washington, New Jersey, and New York) and the District of Columbia have passed laws providing paid family leave to new parents. While Massachusetts lawmakers have tried but failed to pass paid family leave for more than a decade, efforts are underway to put paid family and medical leave on the ballot in 2018.
The Pregnant Workers Fairness Act will take effect on April 1, 2018. Employers should start reviewing their current policies now in order to make the necessary revisions to comply with the law.
Alexandra Geiger is an attorney practicing in the Employment Law Practice Group in both the Woburn, Massachusetts, and Manchester, New Hampshire offices of McLane, Middleton, Professional Association. She can be reached at firstname.lastname@example.org or at (603)628-1483.