MCAD Issues Guidance on the Pregnant Workers Fairness Act

CLIENT ALERT

by

Mark J. Ventola and Paul S. Lopez

Last year, Governor Baker signed the Massachusetts Pregnant Workers Fairness Act (the “Act”) into law. The Act, which goes into effect on April 1, 2018, makes it unlawful for an employer in Massachusetts to discriminate against an employee because of her pregnancy or a pregnancy-related condition. It also requires employers to provide reasonable accommodations to employees for pregnancy and pregnancy-related conditions.

As expected, the Massachusetts Commission Against Discrimination (“MCAD”) has now issued guidance to help employers understand their obligations. The following are the most noteworthy aspects of that guidance.

• If an employee requests an accommodation under the Act, the employer has an obligation to discuss the request in good faith. Called the “interactive process,” this requirement is similar to the obligation placed upon an employer under the disability protection laws.
• Pregnancy-related conditions, including the need to express breast milk, must be accommodated, unless it would cause the employer to suffer an undue hardship.
• An employer cannot require a pregnant employee to go on disability or take parental leave if there is a reasonable accommodation that would allow the employee to continue to perform the essential functions of her position.
• An employer cannot refuse to hire an applicant because she is pregnant or has a pregnancy-related condition if she is capable of performing the essential functions of the position with a reasonable accommodation.
• An employer cannot take an adverse action against an employee for requesting an accommodation under the Act.
• An employer cannot require an employee to submit supporting medical documentation if the employee requests any of the following: (i) more frequent restroom, food, or water breaks; (ii) seating; (iii) lifting restrictions (no more than 20 pounds); or (iv) private, non-bathroom space to express breast milk.

All Massachusetts employers must provide written notice of the Act’s protections before April 1, 2018, as follows: (i) to existing employees, in a handbook, pamphlet, or by other means; (ii) to new employees, at or prior to the start of employment; and (iii) to any employee who notifies the employer of a pregnancy or pregnancy-related condition, within 10 days of such notification. Under the circumstances, it is recommended that employers add this notice to their other employee-rights postings. And, given the emphasis on reviewing “essential duties,” it is more important than ever for employers to prepare or review job descriptions to ensure that they are exceptionally thorough.

While there is still time to prepare, the April 1, 2018 effective date is fast-approaching. If an employer has questions, our Labor & Employment attorneys are available.

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