Pregnant Workers Will Enjoy Broad New Job Protections under Recently Signed Massachusetts Law

A new law set to take effect in Massachusetts early next Spring will protect pregnant women in ways many people never imagined. Beginning April 1, 2018, employers will be required to accommodate pregnancy and lactation. The goal, it seems, is to encourage women to remain in the workforce.

The Pregnant Workers Fairness Act, signed in late July by Gov. Charlie Baker, tracks protections already enjoyed by handicapped employees. It requires employers to consider workplace adjustments for pregnant women, who now benefit only from post-birth leave rights and general sex discrimination laws. Under the Act, employers cannot deny reasonable accommodations unless they cause undue hardships. They must engage interactively with pregnant women to find reasonable accommodations, both before and after they give birth.

It makes sense for employers to consider themselves already bound by the Act. It requires them to notify new workers about pregnancy rights at hiring and existing employees by January 1, 2018. Because women who become pregnant today will not likely give birth until June 2018, the Act may be read to protect them sooner.

The statute includes a variety of commands and proscriptions for employers, including what follows.

*  Provide private, non-bathroom space for lactating mothers.
*  Allow extra leave time as needed beyond the 8 or 12 weeks required by current law for mothers to recover from the effects of childbirth.
*  Restore women to their prior or an equivalent job, with no loss of benefits, when the need for an accommodation ends.
*  Do not penalize women by denying them opportunities based on accommodations for pregnancy or lactation.
*  Do not force pregnant or lactating women to accept accommodations they do not want, unless it’s necessary to allow a woman to perform the essential functions of her job.
*  Do not require women to take a leave of absence for pregnancy or lactation unless it’s required to avoid undue hardship on the employer.
*  Do not refuse to hire an otherwise qualified woman due to her pregnancy or related needs.

To help employers understand and implement the new protections for pregnant women, the Act provides guides to interpret the terms “reasonable accommodation” and “undue hardship.” Both borrow from existing law and are defined broadly.

Under the Act, a reasonable accommodation may include, among other things, more frequent or longer breaks than other employees enjoy; purchasing or modifying equipment or seating; temporary transfers to less strenuous work; help with heavy work; job restructuring; and light duty. Employers will be required to consider all relevant factors when adjusting work for pregnant women or evaluating their accommodation requests. Anything that’s reasonable must be implemented.

Accommodation requests can be denied only due to undue hardship, which the Act defines as “an action requiring significant difficulty or expense.” The burden of proving this will be on employers. Factors such as financial resources, company size and business type, an accommodation’s effects on operations, and others will be relevant. Given this statutory language and current law, the burden on employers is likely to be extremely difficult to satisfy.

Employers should begin the process of implementing the Pregnant Workers Fairness Act immediately. Among other things, a new policy must be inserted into all employee handbooks. Interview and other hiring practices should be reviewed and adjusted. And managers should receive training on the new law. Employers who violate the Act may face claims for lost wages, emotional distress, legal fee, and other damages.