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Massachusetts Pregnant Workers Fairness Act Update: Commission Guidance and Q&As Available

04/05/18

Author: ADP Admin/Thursday, April 5, 2018/Categories: State Compliance Update, Massachusetts

In the November 16, 2017, edition of the Insights & Solutions newsletter, you were notified that the Massachusetts Fair Employment Practices Act had 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 employers cannot discriminate against employees on the basis of pregnancy or conditions related to pregnancy (such as expressing breast milk). You were further informed that the amendments also prohibit employers from: (1) retaliating against pregnant employees who request reasonable accommodation; and (2) requiring 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.

Recently, the Massachusetts Commission Against Discrimination (MCAD) issued questions and answers (Q&A) to provide additional interpretive information about the Massachusetts Fair Employment Practices Act (“Act”). The Q&As updates the MCAD’s recent guidance, issued in late January. Both the Q&As and guidance generally reiterate the plain language of the law and provide additional interpretive information regarding reasonable accommodations and breastfeeding and lactation practices. Finally, the MCAD provides sample language for purposes of the Act’s notice requirement, as the Act requires that employers notify employees of their rights under the Act on or before April 1, 2018 at hire thereafter, and within 10 days of an employee’s notice to the employer of pregnancy.

Below are some highlights from the Q&As.

Reasonable Accommodations
In the Q&As, the MCAD provides information on the employer’s obligation to engage in a good faith interactive process once an employee notifies the employer that she requires a pregnancy-related accommodation.

The MCAD advises that an employee must notify the employer in some way regarding her need for an accommodation, but does not provide details regarding the substance of the employee’s notice obligation. The MCAD indicates that such notice need not be in writing.

Upon request for an accommodation, an employer is required to communicate in a timely, good faith manner with the employee to determine what reasonable accommodations related to the pregnancy or pregnancy-related conditions may be appropriate. The Q&As specifically require discussion(s) between the employee and the employer with respect to the requested accommodation.

Breastfeeding and Lactation
The Q&As also address questions regarding breastfeeding and lactation. For example, the MCAD emphasizes the requirement that employers conduct individualized assessments, and advises that “employers should be aware that every employee has individualized needs, which may vary month to month or even day to day.”

The MCAD further states that employers should accommodate the employee’s needs unless the accommodation results in an undue hardship.

The MCAD recommends that breaks for breastfeeding and expressing breast milk should be approximately 15-20 minutes in duration, with additional time for the employee to get to and from the designated breastfeeding and lactation space and to set up and break down equipment.

The MCAD indicates that breaks to breastfeed or express breast milk may be paid or unpaid. That said, if employers provide paid breaks for other reasons, an employee requiring a lactation break also must be allowed to use those paid breaks to breastfeed or express breast milk.

The MCAD makes clear that employers are not required to provide a space designated for breastfeeding or for expressing breast milk unless and until an employee requires such space. If, however, there is an employee who needs to breastfeed or express milk while at work, the employer is required to provide a private, non-bathroom space large enough to comfortably express breast milk or breastfeed. This space can be an employee’s private office if she has one. The guidance also states that the space should contain electric outlets for pumps, surfaces such as a table, and seating.

Notice Requirement
Finally, the Act requires that on or before April 1, 2018, employers should circulate a notice “in a handbook, pamphlet or by other means to its employees of the right to be free from discrimination in relation to pregnancy or a condition related to pregnancy, including but not limited to lactation or the need to express breast milk for a nursing child ….” The Act also requires that such notice be provided to new employees hired on or after April 1 and within 10 days of an employee’s notice to the employer that she is pregnant.

The Commission’s website indicates that the MCAD guidance document published there may be used to fulfill the employer’s notice requirement.

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.

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