Last year we wrote about legislation around pregnancy fairness laws in several states.

As of April 1, the Pregnant Workers Fairness Act will require employers in Massachusetts with six or more employees to grant an employee a “reasonable accommodation” during a pregnancy, for conditions related to a pregnancy or childbirth. This can include post-pregnancy lactation needs. The law also prohibits employers from discriminating against pregnant employees.

What do employers need to do?

Notify employees. This means letting current employees know about their rights and updating your handbook and new-hire communications to include details of the law. Once an employee notifies HR or management of a pregnancy, she must be provided notice of her rights within 10 days.

What is a “reasonable accommodation” for pregnant employees?

According to the Massachusetts’ official Q&A document for this law, “a reasonable accommodation is a modification or adjustment that allows an employee to perform the ‘essential functions’ of the employee’s position.”

Some examples of reasonable accommodations include

  • breaks that are more frequent or longer
  • time off (can be unpaid)
  • providing additional equipment or seating
  • temporary transfer to a less strenuous or less hazardous job
  • job restructuring
  • light duty
  • private space for expressing breast milk
  • assistance with manual labor activities
  • a modified work schedule

This is not an exhaustive list. The law states that the employee can notify the employer of a need for reasonable accommodation due to a pregnancy or related condition and that a good faith, interactive process should be taken to meet the request.  Typically, this would start with a note from a health care professional stating the need for accommodations to be made. However, the law specifies that employers can NOT request documentation for the following basic accommodations:

  • seating
  • the need for increased restroom, food or water breaks
  • not lifting objects weighing more than 20 pounds
  • private, non-bathroom space for expressing breast milk (see below)

It’s important to remember that pregnant employees don’t all need the same accommodation, and immediately reducing an employee’s responsibilities or removing them from their job without cause can be illegal. Employees should be notified of their rights and then the company should wait for requests for the accommodation the employee needs.

The law also requires additional accommodation for breastfeeding mothers to express breast milk, including but not limited to:

  • private, non-bathroom space that is comfortable and has seating
  • additional time, increased breaks (these can be unpaid, if all employees take unpaid breaks)
  • personal office space can meet the requirement if it is private, and this can allow the employee to keep working, depending on job requirements
  • no space is required unless an employee requests it, at which time space must be provided promptly.

What is considered an “undue hardship” for an employer?

According to the official Q&A, answer 4, “An undue hardship is an action requiring significant difficulty or expense on the part of the employer. Some factors considered include (1) the nature and cost of the needed accommodation; (2) the employer’s financial resources; (3) the overall size of the business; and (4) the effect on expenses and resources of the accommodation on the employer.”
Review the entire Q&A document for the Pregnancy Workers Fairness Act.