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03.22.2018 | Legal Advisory

On February 28, 2018, the Massachusetts Commission Against Discrimination posted on its website four pages of Questions and Answers that supplement the Pregnant Workers Fairness Act Guidance it posted a few weeks earlier, in January.¹  The new items are timely for all Massachusetts employers because the state’s newly-minted,  statutory obligations relating to pregnant workers go into effect on April 1, 2018,² and just one of the statutory requirements is that employers must provide their employees with written notification of the Pregnant Workers Fairness Act no later than the statute’s effective date. 

The following three points also are noteworthy:

1. While employers must ensure that proper notification is given to employees at once, they need not agonize over the form of the required notification.

As the MCAD advises directly on its website, “[t]he MCAD Guidance on the Pregnant Workers Fairness Act may be used to fulfill the notice requirement of the Act.” 

In other words, all that an employer needs to do to provide the mandatory notice is ensure that employees have a copy of the two pages printed here.

A related point also is important.  The same notice of the PWFA thereafter must be given to any new employee, and within 10 days of notification to any employee who notifies the employer of a pregnancy or a pregnancy-related condition.

2. Not only pregnancy but also pregnancy related conditions are protected by the PWFA.

Employment discrimination on the basis of pregnancy or pregnancy related conditions, such as lactation, morning sickness or the need to express breast milk for a nursing child, is prohibited.  As a result, employers generally may not treat employees or job applicants less favorably than other employees because of either pregnancy or pregnancy related conditions. 

Employers also have an obligation to provide reasonable accommodation on the basis of pregnancy or pregnancy related conditions.  A reasonable accommodation is a modification or adjustment that allows an employee to perform the “essential functions” of the employee’s position.

This means, among other things, that employers sometimes will have to engage in a timely, good faith “interactive process” to consider whether and how reasonable accommodation can be made without causing “undue hardship” to the employer.

“Undue hardship” is something that requires significant difficulty or expense on the part of the employer.  The employer has the burden of proving that “undue hardship” exists. And according to the statute, a determination of “undue hardship” requires consideration of factors including the nature and cost of the needed accommodation; the employer’s financial resources; the overall size of the business; and the effect on expenses and resources of the accommodation on the employer.

3. The MCAD is particularly concerned about ensuring that allowances are made for breastfeeding. 

The numbers may be significant.  Fourteen of the MCAD’s nineteen Q&A’s discuss breast-feeding.  Nine are exclusively about breastfeeding.  Some of the views that the MCAD expresses on this subject are these:

• Because employees have individualized needs that may vary month to month or even day to day, employers must allow breastfeeding or milk expression as often as is needed by an employee, absent undue hardship.
• Breastfeeding breaks must allow the employee the time needed to breastfeed or express breast milk, and as guidance from the U.S. Department of Health and Human Services, Office on Women’s Health suggests, breaks may typically last approximately 15 to 20 minutes, plus additional time to get to and from the break room and set up and break down equipment.
• While breastfeeding breaks generally may be either paid or unpaid under the law, the employer must allow the employee to use any paid breaks to breastfeed or express breast milk.
• The employer must provide a private, non-bathroom space that will comfortably allow employees to express breast milk or to breastfeed.
• If an employee has a private, non-bathroom space in which to work, and is able to work while breastfeeding or expressing breast milk, the employee should be allowed to continue working while doing so.

So the bottom line for Massachusetts employers is this: the deadline for compliance with a new set of laws is April 1, and if you haven’t already given the required notification to your employees, you need to do so at once.

¹ Both MCAD documents are available here.

² The Pregnant Workers Fairness Act, signed into effect last July, amends section 4 of chapter 151B of the Massachusetts General Laws.  It also is available here.