News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Massachusetts Legislature Passes Pregnant Workers Fairness Act

Yesterday the Massachusetts Senate unanimously passed Senate Bill 2093, the Pregnant Workers Fairness Act (PWFA). Last month the House unanimously passed a similar bill, H. 3680. The PWFA is headed to Governor Charlie Baker, who has indicated he will sign it.

What is the Pregnant Workers Fairness Act?

The PWFA will amend Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law will also require employers to grant their employees reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. The law lists examples of the types of accommodations that might be required: more frequent breaks, time off to recover from childbirth, light duty, modification of equipment or seating, modified work schedules, and a private space for pumping breast milk. While the law allows employers to require medical documentation for some accommodations, employers are required to provide the following accommodations with no medical documentation: “(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.” 

The law will also prevent employers from taking adverse actions because an employee requests accommodations for pregnancy or related medical conditions. Examples of adverse actions in the senate bill include: adverse actions against employees who request accommodations, denying employment opportunities to someone because they need reasonable accommodations, and refusing to hire someone who is pregnant because of the pregnancy or a condition related to pregnancy (as long as the person is capable of performing the “essential functions” of the job with a reasonable accommodation).

Why Did We Need It?

The patchwork of existing federal and state laws that touch on pregnant workers do not fully address the two main concerns of the PWFA: Accommodations for pregnant employees and the need for breastfeeding workers to express milk at work. Under the federal Americans with Disabilities Act (ADA), an employer must provide reasonable accommodations to employees with disabilities. Pregnancy in and of itself, however, has not been construed to be a disability. While pregnant workers who suffer from related medical conditions that rise to the level of a disability under that statute may be able to receive accommodations, “ordinary pregnancy” need not be accommodated. While the Massachusetts Supreme Judicial Court had held that employers must treat pregnancy-related disabilities the same as other disabilities, pregnancy in and of itself is not automatically a disability under Massachusetts anti-discrimination law. Employers were therefore not required to accommodate pregnancy-related conditions or needs that did not rise to the level of a disability under Massachusetts or federal law.

Until now, Massachusetts was one of 32 states that did not have a law addressing working mothers’ right to express milk in the workplace. In 2010 the federal Affordable Care Act (Obamacare) amended the Fair Labor Standards Act to require employers to provide reasonable break time for certain employees to express breast milk for one year after the birth of a child, in a private place that could not be a bathroom. That law, however, only applied to non-exempt (usually hourly) workers in workplaces that employed at least fifty people. In 2012, the Supreme Judicial Court held that breastfeeding was a pregnancy-linked condition, and as such, discrimination on the basis of breastfeeding is sex discrimination under Massachusetts employment laws (federal courts had previously held that discrimination related to breastfeeding was not sex discrimination under similar federal laws). While a worker could therefore make an argument that intentional discrimination against her because she was breastfeeding constitutes sex discrimination under Massachusetts law, there was no affirmative obligation on employers to provide all employees with breaks to facilitate breastfeeding or pumping.

How Are Rights Under the PWFA Enforced?

The PWFA is set to go into effect on April 1, 2018. After that time, claims of discrimination on the basis of pregnancy and related medical conditions will be treated like all other discrimination or retaliation under G. L. c. 151B, including sex discrimination and disability discrimination. An individual who has a discrimination claim or a retaliation claim arising from her attempt to exercise rights provided by the PWFA must file a complaint with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the act of discrimination. After receiving a determination or a “right to sue” letter from the MCAD, claims can be brought in court. Those claims must be brought within three years of when the discrimination or retaliation occurred. Under c. 151B, if you prevail on a claim of discrimination you can obtain injunctive relief (requiring the employer to take specific actions), monetary damages, and attorneys’ fees and costs.

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