New Pregnancy Discrimination Law in Effect April 1, 2018

On April 1, the Massachusetts Pregnant Workers Fairness Act (MPWFA) takes effect. The law, enacted in July 2017 as Chapter 54, prohibits Massachusetts employers from denying pregnant women and new mothers a reasonable accommodation for their pregnancies and any conditions relating to their pregnancies. The law applies regardless of whether the pregnancy or related condition is considered a ”disability” under other federal or state discrimination laws. As background, the federal Pregnancy Discrimination Act of 1978 (PDA) already requires that pregnant employees receive the same treatment as all other employees. The MPWFA, though, goes a bit further by creating an accommodation mandate and by creating guidelines that protect pregnant and nursing employees from adverse action relating to pregnancy, pregnancy-related conditions and nursing. The MPWFA also applies to employers with six or more employees (whereas the PDA applies to those with 15 or more).

Under the MPWFA, employers may not discriminate against employees based on pregnancy, childbirth, need for maternity leave or related conditions, including lactation, unless the discrimination is based on a bona fide occupational qualification. Employers must provide a reasonable accommodation to an employee who’s disabled due to pregnancy, miscarriage, abortion, childbirth or related recovery. The only exception is if doing so causes undue hardship for an employer. This is a high bar to meet. Specifically, “undue hardship” means that accommodations require significant difficulty or expense on the employer based on the nature and cost of the accommodation, employer’s overall financial resources and employer’s size.

In accommodating an employee, employers must engage in a timely, good-faith and interactive process with the employee to determine whether a reasonable accommodation would enable the employee to effectively perform her essential job functions. Reasonable accommodations may include (but are not limited to): a temporary leave of absence, shift breaks, modified equipment, light-duty assignment, assistance with manual labor or modified work schedule. An employer may request that the employee submit documentation from a health care provider.

Employers should have provided written notice to existing employees by April 1. They must also provide notice to new employees on an ongoing basis. Further, the employer must distribute the notice to a specific employee anytime the employer has knowledge that the employee is pregnant. The notice may be provided as part of the handbook or a separate written notice. The Massachusetts Commission Against Discrimination (MCAD, which is charged with enforcing the MPWFA) hasn’t yet published a model notice. While not officially sanctioned by the MCAD, it appears that employers may repurpose official guidance provided by the MCAD to use as a notice, as the official guidance includes general provisions, the employer’s obligations, and employee rights, including the right to file a complaint. Similarly, some employers are relying on an MCAD FAQ document, since that also includes pertinent information regarding the MPWFA.

For employers, the MPWFA brings new requirements regarding employees who are pregnant, nursing or have pregnancy-related conditions. While the MCAD guidance and FAQs can provide general information and may potentially serve as a notice for employees, employers should work with outside counsel in developing their pregnancy accommodation strategy and in developing their leave policies in accordance with the MPWFA.

Chapter 54 »
MCAD Official Guidance »