The Pregnant Workers Fairness Act (the “Act”)[1] goes into effect April 1, 2018. Are you ready?
The Act applies to all employers with six or more employees. In creating a new protected class, the Act prohibits employment discrimination on the basis of pregnancy or a condition related to pregnancy. An employee may have a condition related to pregnancy during or after pregnancy. Examples are morning sickness, lactation, or the need to express breast milk.
No later than April 1, 2018, employers must provide written notice, in a handbook, pamphlet, or some other form, to all employees of the “right to be free from discrimination in relation to pregnancy or a condition related to the employee’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, including the right to reasonable accommodations for conditions related to pregnancy.”[2]
In addition to the general notice requirement, written notice of rights under the Act must be provided to (1) all new employees at or prior to commencement of employment; and (2) to employees who notify the employer of a pregnancy or an employee who notifies the employer of a pregnancy-related condition, no more than 10 days after such notification.
Under the Act, it is unlawful for an employer to refuse to provide “a reasonable accommodation” for an employee’s pregnancy or pregnancy-related condition if the employee requests an accommodation unless the employer can prove that providing that accommodation presents an “undue hardship.” A “reasonable accommodation,” may include, for example, more frequent or longer paid or unpaid breaks, private non-bathroom space for expressing breast milk, or temporary transfer to a less strenuous or hazardous position.
Upon receiving a request for an accommodation, an employer must engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation to enable the employee or prospective employee to perform the essential functions of the job. An employer cannot require medical documentation about the need for an accommodation if the requested accommodation is for: (i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting no more than 20 pounds; and (iv) private, non-bathroom space for expressing breast milk. An employer, however, can request medical documentation for other accommodations.
Similarly, under the Act, an employer may not: (1) take adverse employment action against an employee who requests or uses a reasonable accommodation; (2) deny an employment opportunity to an employee if the denial is based on the need of the employer to make a reasonable accommodation to the known pregnancy-related condition; (3) require an employee to accept an accommodation if that accommodation is unnecessary to the employee’s performance of essential functions of the job; (4) require an employee to take leave if another reasonable accommodation would enable the employee’s performance of an essential job functions; or (5) refuse to hire an applicant who is pregnant because of pregnancy or because of a condition related to pregnancy, so long as the applicant is capable of performing the essential functions of the position with a reasonable accommodation.
If you would like to speak to someone about these or other aspects of the law, please contact Diane DeGiacomo or Jennifer Carpenter, members of our Employment Law Group.
[2] The MCAD Guidance on the Pregnant Workers Fairness Act may be used to satisfy this notice requirement.