The Massachusetts Pregnant Workers Fairness Act, which goes into effect on April 1, 2018, will require employers to provide new types of accommodations to pregnant workers. Under existing laws, an employer may not refuse to hire or discharge a woman based on her pregnancy, but, in most cases, has no affirmative obligations to accommodate pregnancy-related conditions unless those conditions qualify as disabilities under the disability discrimination laws. The Pregnant Workers Fairness Act addresses that issue by imposing broad accommodation requirements, which in some cases exceed those imposed under Massachusetts law for accommodation of disabilities.
Some of the accommodation requirements are not new. For example, the Act requires accommodation of the need for a nursing mother to express milk at work. This is already the law under the Fair Labor Standards Act, with the FLSA requiring an employer to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” This obligation is mandatory under the FLSA for employers with 50 or more employees. Smaller employers are required to comply unless they can show the law would impose an undue hardship.
In addition, some of the accommodation requirements in the new Act are similar to the types of accommodation that employers have traditionally provided under the disability accommodation laws, such as leaves of absence or modification of equipment or seating.
The Act, however, has some unique accommodation requirements that typically have not applied in the disability discrimination area under Massachusetts law. These include requiring employers, in the absence of a showing of undue hardship, to provide expectant or new mothers with temporary transfers to a less strenuous or hazardous position, job restructuring, or light duty assignments.
These types of accommodations are a radical departure from what has been previously required under Massachusetts law. In general, the disability accommodation requirements have been designed to allow an employee to perform the essential functions of her or his job; the new Act, by contrast, may entitle the employee to an entirely new job.
The obligation to provide a different job does not extend to bumping an employee who has greater seniority. Similarly, the Act also does not require employers to discharge another employee in order to provide a new temporary job to the pregnant worker. Unfortunately, though–as the result of a missing comma–the Act implies that, to accomodate the pregnant employee, an employer may be required to discharge another employee who has less seniority. This is not the law in any other state. The legislative history of the Act reveals that the missing comma was removed when legislators made minor tweaks designed to clarify the Act. It seems unlikely that the Act was intended to impose such a drastic accommodation requirement.
Because the accommodation principles under the Act are broader than those that have applied in the disability accommodation area, employers should train their HR personnel and managers on the new requirements. Employers should also update their handbooks to include information on the new law.
If you have questions about how to revise policies, train employees, or make other changes to comply with this new law, please contact Laurie Rubin, the author of this alert, at 617.456.8020 or lrubin@princelobel.com, or Dan Tarlow, the chair of Prince Lobel’s Employment Law Group, at 617.456.8013 or dtarlow@princelobel.com. And be sure to join us at our office on Thursday, December 7, for “Meet the Commission: A Conversation with the MCAD,” a panel event which will feature members of the Massachusetts Commission Against Discrimination discussing this and other recent topics in the field. Click here to learn more and to register.