By: Kenney & Sams, P.C.
Beginning on April 1, 2018, a new antidiscrimination law will punish employers discriminate against pregnant Massachusetts workers, including refusing to provide them with sweeping new accommodations for their pregnancy and pregnancy-related conditions. However, employers should start preparing now to comply with the statute, particularly where the law affirmatively requires employers to notify their employees of the new law’s effects.
The New Law Prohibits Pregnancy-Motivated Discrimination, And Requires Accommodations Such As Expanded Breaks And Private Lactation Areas
The “Massachusetts Pregnant Workers Fairness Act,” signed into law in July 2017, prohibits and labels as discriminatory any negative, pregnancy-motivated employment decisions such as refusal to hire, refusal to promote, or termination. While this was largely the case already—pregnancy-motivated adverse actions often constituted illegal gender or disability discrimination—the law’s emphasis on pregnancy discrimination is likely to increase the likelihood of discrimination claims.
Further, the statute requires employers to provide “reasonable accommodations” for pregnant employees, including but not limited to allowing lactation breaks; providing private, non-bathroom areas for expressing breast milk; and permitting longer and more frequent bathroom, food, or water breaks.
The law provides an exception for employers that would incur “undue hardship” in providing these accommodations—the same exception available to employers for any other disability accommodation. As disability cases have shown, however, the “undue hardship” exception is very difficult to prove, and it often is not enough that the accommodation is costly and inconvenient. Unless one of these pregnancy-related accommodation is impossible or would risk jeopardizing the company’s existence, employers should not necessarily refuse an accommodation based on undue hardship.
Employers Should Prepare Now For Compliance With The New Law
Although the statute does not take effect until April 1, 2018, employers should be taking two important steps now to ensure they are in compliance.
First, the statute requires that all employers notify their employees of the law and its protections no later than April 1, 2018. While employers can do this by updating and recirculating their employee handbooks, employers who do not have employee manuals can circulate memorandums or pamphlets. However an employer chooses to do this, the employer not only needs to circulate the notice to new employees by April 1, 2018, but also must provide the notice to all new employees after that date, and must give a new copy to a pregnant employee within 10 days after the employee notifies the employer of a pregnancy-related condition.
Second, employers should also become familiar with the law and incorporate practices that will reduce the risk of discrimination claims. For example, to reduce the risk of failure-to-hire claims, employers should work with management to ensure that job interviewers do not ask questions that could be seen as asking about pregnancy or pregnancy-related conditions. Employers also should be sensitive to disciplining or terminating pregnant employees without good reason (as it otherwise could be seen as discriminatory), and ideally should work with management to ensure that all employees’ performance issues are being documented (as claims for discriminatory firing are easier to defend with documents demonstrating the reason for termination).
To make sure your company does not run afoul of this important new law, work with your lawyer to update your written policies and refine your management practices.