Earlier this year, the MCAD issued guidance on the Pregnant Workers Fairness Act (the “Act”) and the “MCAD Q&A Pregnant Workers Fairness Act.” The Act, which takes effect on April 1, 2018, amends existing law to expressly prohibit pregnancy and pregnancy-related discrimination, and requires employers to provide a reasonable accommodation to an employee who is pregnant or who has a condition related to pregnancy.
What Does This Mean?
Employers may not discriminate against employees or job applicants because they are pregnant or have a pregnancy-related condition. Employers must also provide reasonable accommodations to employees who are pregnant or who have a pregnancy-related condition, unless it would impose an undue hardship on the employer. Once an employee requests an accommodation, the employer must engage in the interactive process with the employee to address the employee’s needs. In many ways, an employer’s obligation to communicate about accommodations for pregnancy-related conditions is similar to its obligations under the Americans with Disabilities Act (ADA) and the Massachusetts anti-discrimination law, Chapter 151(B). In the case of the PWFA, however, an employee need not be disabled or handicapped to be entitled to an accommodation.
The FAQs define the following key terms:
- Condition related to pregnancy. A condition related to pregnancy may occur during or after pregnancy. This may include morning sickness, lactation, or the need to express breast milk.
- Reasonable accommodation. A reasonable accommodation is a modification or adjustment that allows an employee to perform the essential functions of the employee’s job. Once an employee notifies the employer of her need for a modification, the employer must engage in a timely, good faith, interactive process to determine what type of accommodation can be made. Examples of reasonable accommodations include:
- Longer or more frequent breaks;
- Time off;
- Providing equipment or seating;
- Temporary transfer to a less strenuous or hazardous job;
- Job restructuring;
- Light duty;
- Private space for expressing breast milk;
- Assistance with manual labor; and
- A modified work schedule. For example, if a pregnant employee suffers from morning sickness, her employer may need to allow a later start time, if doing so would not create an undue hardship.
- Undue hardship. An undue hardship is a modification that requires significant difficulty or expense on the part of the employer. Some factors considered in determining whether a modification constitutes an undue hardship include: (1) the nature and cost of the needed accommodation; (2) the employer’s financial resources; (3) the overall size of the business; and (4) the effect on expenses and resources of the accommodation on the employer.
As is so often the case with employment laws, the answer to many employer questions is: it depends! For example:
- How often can an employee take a break to breastfeed or express breast milk? The law does not specify the number or duration of breaks an employee can take to accommodate a pregnancy-related condition. Emphasizing “individualized needs,” which can “vary month to month or even day by day,” employers must allow employees to take as many breaks as they need, absent undue hardship. The duration of breaks also will vary. The time to express milk often is about 15-20 minutes, although an employee may need additional time to get to and from the break room and to set up and break down equipment.
- Must an employer pay an employee for breaks? Breaks can be paid or unpaid; however, if an employer provides paid breaks to employees, the employer must allow an employee to use those paid breaks to, for example, breastfeed or express breast milk.
- Can an employee choose to work while breastfeeding or expressing milk? If an employee has a private, non-bathroom space in which to work, and is able to work while breastfeeding or expressing milk, the employee may continue working while doing so.
Despite these “it depends” caveats, the guidance is clear that there are certain things that employers may not do, such as:
- Refuse to hire a pregnant job applicant or an applicant with a pregnancy-related condition. An employer may not refuse to hire a job applicant because of their pregnancy or related condition, so long as the applicant is capable of performing the essential functions of the job with a reasonable accommodation.
- Take an adverse employment action because the employee requested a reasonable accommodation. An employer cannot deny an employment opportunity or take adverse action against an employee because of the employee’s request for, or use of, a reasonable accommodation for a pregnancy or pregnancy-related condition.
- Require medical documentation for an employee’s need for certain accommodations. An employer cannot require medical documentation about the need for a requested accommodation if it is for: (i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting no more than 20 pounds; and (iv) private, non-bathroom space for expressing breast milk. An employer may, however, request medical documentation for other accommodations.
What should employers do before April 1, 2018?
- Determine whether changes need to be made to the physical workplace environment. Employers must provide employees who need to breastfeed or express breast milk with a private non-bathroom space in which to do so.
- This space should be private and in a convenient location for employees. It should also have sufficient electrical outlets for breast pumps, tables to hold the equipment, and seating.
- Employers do not have to provide a space for employees to express breast milk if none of its employees currently need to do so, however, once the employer is on notice that an employee will need such a space, the employer should be able to prepare the space quickly.
- Update all existing leave and accommodation policies. Employers must provide written notice to employees of the right to be free from discrimination due to pregnancy or pregnancy-related conditions by April 1, 2018. Employers can provide notice through an employee handbook, pamphlet, the MCAD guidance, or other regular means of communication, such as the employer’s intranet.
- After April 1, 2018, additional notice must also be given to all new employees and to any employee who notifies the employer of a pregnancy or a pregnancy-related condition, within 10 days of the notification.
- Ensure that all supervisory and human resources personnel are aware of the updated law and the employer’s obligation to provide a reasonable accommodation.