On July 27, 2017, Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (“PWFA”).  Historically, courts have struggled with the issue of whether pregnancy is a “disability” that must be accommodated under the Americans with Disabilities Act (the “ADA”) as well as under Massachusetts law.  The PWFA resolves that issue and conclusively establishes that pregnancy, and any related conditions, must be accommodated and that discrimination against pregnant workers is prohibited.

The PWFA goes into effect April 1, 2018 and amends Chapter 151B to:

• Add “pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child” as a protected classification;
• Require employers to provide a reasonable accommodation (see below) for an employee’s pregnancy, or any condition related to the pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
• Prohibit employers from retaliating against an employee for requesting an accommodation;
• Provide that employers must reinstate the employee to her original employment status or equivalent position with equivalent pay and accumulated seniority when the need for reasonable accommodations ceases; and
• Prohibit employers from requiring pregnant employees to accept a reasonable accommodation or take a leave of absence.

With respect to the requirement that employers provide reasonable accommodations to pregnant employees, the PWFA specifically enumerates several reasonable accommodations, including: (1) more frequent or longer paid or unpaid breaks; (2) paid or unpaid time off to recover from childbirth; (3) acquisition or modification of equipment or providing seating; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty; (7) private non-bathroom space for expressing milk; (8) assistance with manual labor; and (9) modified work schedules.  Under the ADA, employers can require employees to submit documentation to support their need for a reasonable accommodation.  The PWFA, however, prohibits employers from requiring documentation to support four reasonable accommodations: more frequent restroom, food, and water breaks; seating; limits on lifting over 20 pounds; and private non-bathroom space for expressing milk.

Employers must provide notice of the protections and rights created by the PWFA to all employees in a Handbook or by other means, and must provide notice to: (a) all new employees at the commencement of employment; and (b) any employee who notifies the employer of a pregnancy or related condition within 10 days of such notification. Employers should act now to create policies to satisfy this provision.

Please contact a member of our Labor and Employment Group if you have any questions about your organization’s obligations under the PWFA, including the drafting and implementation of policies.