NEW LAW REQUIRES EMPLOYERS TO ACCOMMODATE PREGNANT/LACTATING EMPLOYEES, AND TO ISSUE NEW WRITTEN POLICIES AND NOTICES

by Employment Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com
August 10, 2017

A newly enacted Massachusetts law requires employers of six or more employees to provide accommodations requested by pregnant, nursing or lactating employees, unless doing so would cause the employer “undue hardship”. In addition, a new protected group has been added to the Massachusetts anti-discrimination law, requiring employers to refrain from discriminating against employees and job applicants based on pregnancy or pregnancy related conditions including “lactation or the need to express breast milk for a nursing child”. Thus, pregnant employees and applicants will now be entitled to reasonable accommodations for pregnancy related conditions, such as morning sickness, even if the condition is not severe enough to constitute a “disability”.

The new law takes effect on April 1, 2018. As described more fully below, there are many steps that employers will need to take in the interim to be sure that they are fully in compliance by then.

Employers are required to issue a written pregnancy non-discrimination and accommodation policy to all existing employees by April 1, 2018, and to continue after that date to provide a copy of the policy to all new hires. (The policy can be distributed in a handbook, or in stand-alone form). Employers must also provide a copy of the policy, within 10 days, to any employee who notifies the employer of a pregnancy or a condition relating to pregnancy, including lactation or the need to express breast milk for a nursing child.

The new law lists a number of examples of reasonable accommodations that employers must consider providing, including:
  • more frequent or longer paid or unpaid breaks;
  • time off to attend to a pregnancy complication or recover from childbirth with or without pay;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private space (other than a bathroom) for expressing breast milk;
  • assistance with manual labor;
  • a modified work schedule.
When an employee or prospective employee requests an accommodation due to pregnancy or a pregnancy related condition, the employer and the employee must engage in a “good faith and interactive process” to decide on an effective, reasonable accommodation to enable the employee to perform the essential functions of the position. As part of the interactive process, the employer can generally require documentation about the need for a reasonable accommodation from “an appropriate health care or rehabilitation professional” which could be any one of a list of provider types, including midwives and lactation consultants; physician assistants; physical, occupational, speech, or vocational therapists; and various types of mental health providers. Employers can also require such documentation for an extension of an accommodation beyond that originally agreed to. However, employers cannot seek medical documentation to substantiate a request for the following pregnancy related accommodations:
  • more frequent restroom, food or water breaks;
  • seating;
  • limits on lifting more than 20 pounds; and
  • private non-bathroom space for expressing breast milk.
The new law also makes it unlawful for an employer to:
  1. Take an adverse action against an employee who requests or uses a pregnancy related reasonable accommodation;
  2. Deny an employment opportunity to an employee so as to avoid the need to make a pregnancy related accommodation
  3. Require an employee to accept a pregnancy related accommodation that the employee chooses not to accept, if the accommodation is not necessary to enable the employee to perform the essential functions of the job;
  4. Require an employee to take a leave of absence if another reasonable accommodation could be provided without undue hardship;
  5. Refuse to hire an applicant who is able to perform the essential functions of the job because she is pregnant, lactating or nursing.
STEPS EMPLOYERS SHOULD CONSIDER TAKING TO COMPLY WITH THE NEW LAW:
  1. Compile the required pregnancy non-discrimination and accommodation policy, and distribute it to all existing employees by April 1, 2018 at the latest
  2. Have your handbook reviewed, revised and in place by April 1, 2018. Your handbook should include your new pregnancy policy. In addition, the wording of other handbook policies may need to be changed to bring them into compliance with the new law. For example, any current policy you have about pregnancy accommodation may need to be revised. Your equal employment opportunity, harassment and retaliation policies may need to be changed to include pregnancy and pregnancy related conditions as a new protected group. Break, leave, attendance, light duty, accommodation and other policies may also need to be revised.
  3. Set up procedures by which all new hires receive a copy of your pregnancy policy, and documentation is retained evidencing that the policy has been given to each new hire.
  4. Set up procedures by which any employee who notifies a company management person of a pregnancy or a condition relating to pregnancy (including lactation or the need to express breast milk for a nursing child), gets a copy of the policy within 10 days. You will need to create some type of system that documents that the notice was given, so that you will have evidence of compliance if ever needed.
  5. Set up a procedure for documenting the communications which take place as part of the required pregnancy accommodation “interactive process”. You may also want to create a form to use in seeking medical documentation about pregnancy related accommodations requested by your employees.
  6. Supervisors, managers and HR personnel will need to be fully trained on the new law. For example, they will need to recognize the types of pregnancy/lactation related requests they must now grant or consider granting. They must also know what steps to take to ensure that any employee who notifies management of a pregnancy or a pregnancy related condition receives a copy of your policy within 10 days.
  7. If you have not yet been providing a private space (other than a bathroom) for lactating women to express breast milk, develop a plan for what you will do when you receive such a request. It may also be helpful to consider ahead of time how you would provide the other types of specific accommodations that are listed above.







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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com