The Massachusetts Fair Employment Practices Act has been amended to expressly identify pregnancy “or any condition related to the employee’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child,” as a protected characteristic and requires that employers not discriminate against employees on the basis of pregnancy or conditions related to pregnancy (such as expressing breast milk). It further prohibits employers from retaliating against pregnant employees who request reasonable accommodation. Like other discrimination statutes, the new law makes it unlawful for employers to take adverse actions or deny employment because of an employee’s pregnancy or because she may require a reasonable accommodation. Employers also may not require pregnant employees to accept accommodations that are not necessary for them to perform their job or require them to take a leave of absence if alternative accommodations may suffice to meet their needs.
Reasonable Accommodations
Employers are required to provide reasonable accommodations to pregnant employees. The law provides several examples of reasonable accommodations, such as: (1) more frequent or longer breaks; (2) time off; (3) acquisition or modification of equipment or seating; (4) temporary transfers; (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.
The reasonable accommodation requirements under the amended law go further than those currently provided under current federal and state law. Unlike the Americans with Disabilities Act, where expectant mothers typically receive reasonable accommodations if they suffer from temporary medical conditions exacerbated by pregnancy, under the amended Massachusetts law, pregnant employees may seek reasonable accommodations on the basis of pregnancy or childbirth, with or without the existence of related medical complications. Employers must engage in the interactive process, and they may seek documentation for certain accommodations requested by the employee. Documentation may not be sought if the requested accommodation is more frequent breaks, seating changes, limitations on lifting more than 20 pounds, or a private space for expressing breast milk.
The new law also makes clear that employers are not required to provide an accommodation if doing so would result in an undue hardship on the employer. The following four factors should be considered in determining whether an undue hardship exists: (1) nature and cost of the accommodation; (2) financial resources of the employer; (3) size of the employer; and (4) effect and impact of the accommodation on the employer’s business.
Notice
The new law also contains written notice requirements. Specifically, employers must provide written notice — in an employee handbook or elsewhere — of employee rights under the new law. Such notice also must be provided to new employees on or prior to their first day and an employee who notifies the employer of a pregnancy or of a condition related to pregnancy (e.g., lactation or need to express breast milk) within 10 days after such notification.
Coverage: Massachusetts employers with 6 or more employees.
Effective: April 1, 2018
Action Required: You should familiarize yourself with your new obligations. You should also modify your policies and/or practices to ensure that your supervisors are prepared to receive and respond to your pregnant employees’ requests for reasonable accommodation or notify the appropriate employer representative of such requests.
As always, please be sure to contact your HR Business Partner if you have any questions.
* Produced in cooperation with Jackson Lewis P.C.