Pregnant Workers Fairness Act: What Every Employer Should Know

Issue March/April 2019 March 2019 By Michelle M. De Oliveira
Labor & Employment Law Section Review
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Michelle M. De Oliveira

As the new year begins, it is an ideal time for employers to assess whether their policies and procedures are compliant with Massachusetts laws — including the Pregnant Workers Fairness Act (PWFA). It goes without saying that most companies will, at one point or another, have an employee who is pregnant or who experiences a condition related to pregnancy. The purpose of this article is to examine the PWFA and provide a refresher on its requirements.

What Is the PWFA?

On July 27, 2017, Gov. Charlie Baker signed the PWFA into law. The PWFA amends M.G.L. c. 151B to include pregnancy and related conditions (e.g., breastfeeding or expressing breast milk) as protected categories under Massachusetts’ anti-discrimination statute.

What Is the Effective Date of the PWFA?

April 1, 2018.

What Are the Protections Set Forth Under the PWFA?

  • The PWFA expressly prohibits employment discrimination or retaliation against an individual on the basis of a pregnancy or a condition related to pregnancy.
  • An employer cannot deny an employment opportunity to, or take an adverse action against, an employee who requests or uses a reasonable accommodation on the basis of a pregnancy or a condition related to pregnancy.

What Is a “Condition Related to Pregnancy?

  • A condition related to pregnancy can be either during or after a pregnancy (e.g., morning sickness, lactation or a need to express breast milk).

Who Is Protected by the PWFA?

Current and prospective employees of employers that are covered under c. 151B (generally, an employer with six or more employees is covered under c. 151B).

What Are the Notice Requirements Set Forth Under the PWFA?

  • An employer must:

     (1) provide all employees written notice of their rights under the act no later than April 1, 2018;

     (2) provide written notice to new employees of their rights under the act either at or prior to the commencement of their employment; and

     (3) provide written notice — within 10 days — to an employee who notifies the employer of a pregnancy or pregnancy-related condition of the employee’s rights under the PWFA.

How Should an Employer Handle a Reasonable Accommodation Request From an Employee Who Is Pregnant or Has a Condition Related to Pregnancy?

  • FIRST: Determine whether the reasonable accommodation is listed in the PWFA. Although the list is non-exhaustive, it is an important guide. Under the PWFA, reasonable accommodations may include:

     (1) more frequent or longer breaks;

     (2) time off to attend to a pregnancy complication or recover from childbirth;

     (3) acquisition or modification of equipment seating;

     (4) temporary transfer to a less strenuous or hazardous position;

     (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.

  • SECOND: Engage in a timely, good-faith and interactive process with the individual. What this boils down to is simply having a discussion(s) with the employee about the reasonable accommodation and the employee’s needs. Employers should memorialize these discussions in writing and ensure they have adequate written documentation describing these discussions.
  • THIRD: Depending on the reasonable accommodation sought, do not ask for medical documentation. The PWFA prohibits employers from asking for medical documentation if the reasonable accommodation sought is:

     (1) more frequent restroom, food or water breaks;

     (2) seating;

     (3) limits on lifting over 20 pounds; or

     (4) private, non-bathroom space for expressing breast milk.

If the requested accommodation is not something on this list, the employer may ask for medical documentation from a health care professional that describes what accommodation the employee needs.

  • FOURTH: Conduct an “undue hardship” analysis. If the employer will not suffer an “undue hardship,” then the employer must grant the reasonable accommodation. An undue hardship is a significant difficulty or expense to the employer. Factors considered 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.”
  • FIFTH: Grant the reasonable accommodation request so long as doing so will not cause an “undue hardship.” Please remember that if there is a reasonable accommodation that would allow the employee to perform the essential duties of the job without undue hardship to the employer, the employer cannot require an employee to accept a particular accommodation, or begin disability or parental leave.

Do Breaks to Breastfeed or Express Breast Milk Need to Be Paid?

Breaks can be paid or unpaid. The key is that an employer needs to treat breaks, under the PWFA, the same way that it treats other types of breaks. So, for example, if an employer provides paid rest breaks to employees, then an employee who uses the break to express breast milk should be paid for that break as well.

Private, Non-Bathroom Space to Express Breast Milk or to Breastfeed

Employers must provide private, non-bathroom space for an employee to breastfeed or express breast milk. Although the PWFA does not impose requirements on what the private space must look like, the Massachusetts Commission Against Discrimination (MCAD) has spoken on this issue, stating that it should: be a private space free from intrusion by others; be convenient for employees so that getting to and from the space does not “materially impact the employee’s break time[;]” and include outlets, a surface to set up equipment, and seating.

If an employer does not have a current or prospective employee who needs a private space to breastfeed or to express breast milk, the employer does not need to make the space available. However, employers should be thinking about this to ensure that if an employee needs private space to breastfeed or express breast milk, the employer will be able to meet its obligations under the PWFA — and provide the space.

Who Will Enforce the PWFA?

The MCAD. Additional resource materials from the MCAD can be found at
https://bit.ly/2ITjTsl.

Looking forward, employers should have processes in place concerning how to address requests for reasonable accommodations from employees who are pregnant or suffer from conditions related to pregnancy. Employers should also have processes in place for issuing employees and prospective employees the written notices required under the PWFA. Please contact your employment law attorney if you have any questions or concerns. 

Michelle M. De Oliveira focuses her practice in the areas of employment litigation, counseling and commercial litigation. She counsels employers on workplace issues, including wage and hour issues, employee handbooks, disciplinary actions, reasonable accommodations in the workplace, noncompete agreements, and legal developments in Massachusetts. She also regularly represents clients in employment related disputes, including discrimination, sexual harassment and wrongful termination, before both state and administrative agencies. De Oliveira also maintains a general litigation practice, handling pre-litigation and litigation strategies in civil litigation matters, including construction disputes.