Massachusetts Enacts Pregnant Workers Fairness Act

Posted on: July 31, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

The move toward significant workplace protections for pregnant employees continues state by state.  On July 27, 2017, Massachusetts Governor Charlie Baker signed House Bill 3680 establishing the Massachusetts Pregnant Workers Fairness Act.

Massachusetts joins 15 other states and Washington, D.C. with similar protections for pregnant employees.  These laws typically provide protections well beyond existing protections under the Americans with Disabilities Act, in that they do not require the employee to be disabled by the pregnancy in order to receive a reasonable accommodation.

The Massachusetts Act, effective April 1, 2018, provides broad protections for employees and prospective employees who are pregnant or have conditions related to pregnancy.  Key provisions include the following:

Employers cannot deny an employee’s request for a reasonable accommodation due to an employee’s pregnancy or condition related to pregnancy, including lactation or expressing breast milk.

Employers must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations to enable employees to perform the essential functions of their jobs.

Employers can require documentation to support a request for a reasonable accommodation. The Act identifies a broad list of types of health care providers who can supply the documentation, including not just physicians but also a variety of other medical professionals, assistants, and therapists.

Documentation cannot be required for employee requests for: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The employer can deny an employee’s request if it can show that the accommodation would impose an undue hardship, defined as significant difficulty or expense. Factors to consider include the nature and cost of the requested accommodation, the financial resources, size, and facilities of the employer’s business, and the impact of the requested accommodation on the employer’s expenses, resources, or other impact on the employer’s business.

Employers cannot require an employee to accept an unnecessary accommodation, including a forced leave of absence.

The Act prohibits discrimination and retaliation against a pregnant employee or prospective employee in hiring and in terms and conditions of employment, or for requesting an accommodation.

Employers must provide written notice of employees’ rights under the Act, including the right to reasonable accommodations for conditions related to pregnancy. Required notices include a notice of the rights under the Act in an employee handbook, notice to all new employees upon starting employment, notice to existing employees on or before January 1, 2018, and notice to an employee within 10 days of notification to her employer of her pregnancy and/or her need to express breast milk for a nursing child.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Pregnancy Issues Continue to Expand: Company Fired Pregnant Employee For Her Own Good

Posted on: February 17, 2017 1

By Marti Cardi, VP-Product Compliance

Enforcement and legislative attention continue to increase around pregnant employees and pregnancy-related conditions in the workplace.  The message to employers?  Treat a pregnant employee poorly – or differently – at your peril.  Rooms to Go learned this lesson recently, even though the pregnant employee’s manager seemed to be acting in the employee’s best interest.

The Case.  RTG Furniture Corp. (RTG) operates a chain of Rooms to Go furniture stores and distribution centers nationwide.  After being sued by the Equal Employment Opportunity Commission (EEOC), the company has agreed to pay $55,000 and provide other relief.

According to the EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. The EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility.  If true, this conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits employers from terminating workers because they are pregnant.

As is common in settlements of EEOC lawsuits, the company agreed to other provisions in addition to providing monetary relief to McBryde.  The three-year consent decree between RTG and the EEOC requires RTG to develop and implement a policy that prohibits pregnancy-based discrimination; to conduct annual pregnancy discrimination training for employees, supervisors, and managers at certain facilities; to post a notice about the lawsuit and employee rights under federal anti-discrimination laws at those same facilities; and to provide periodic reports to the EEOC.  Thus, while the $55,000 judgment may seem like something your company could handle, this type of extensive oversight and training obligation is far more intrusive and onerous.

According to the EEOC, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume.  If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”  EEOC Press Release 02-03-2017

Sources of Pregnancy Protections.  Here are some of the state and federal laws that provide protections for pregnant workers:

  • The federal Pregnancy Discrimination Act, passed in 1978 as an amendment to Title VII, prohibits sex discrimination on the basis of pregnancy. Pregnant women who are able to work must be permitted to work under the same conditions and must be treated the same as non-pregnant employees.  The EEOC will broadly interpret when pregnancy-related conditions are considered disabilities under ADA.
  • The federal Family and Medical Leave Act defines a “serious health condition” to include pregnancy and provides up to 12 weeks of leave for prenatal care and pregnancy-related conditions.
  • Under the Americans with Disabilities Act, a “normal pregnancy” is not a disability – but a “pregnancy-related impairment that substantially limits a major life activity” can be a disability.
  • State laws – as of 2016:

Virtually all states have provisions similar to the Pregnancy Discrimination Act in their civil rights laws.

Approximately 12 states have laws specifically requiring employers to grant a leave of absence for pregnancy disability.

Approximately 17 states have laws requiring accommodation of pregnancy-related conditions in the workplace – even if not a “disability.” “Common conditions of pregnancy” must be accommodated.  Accommodations can include leave of absence as well as breaks, equipment, modified schedules or duties, light duty, etc.

Many more state pregnancy leave and accommodation laws have already been introduced in 2017. Watch this blog for announcements if/when they pass.

Pings for Employers

Treat pregnancy the same as other temporary disabilities – unless a law specifically requires more favorable treatment.

Consider whether your policies and practices provide equal treatment for pregnant employees with regard to:

  • Amount of paid/unpaid leave for a temporary disability.
  • Availability of light duty – it is NOT just for worker’s compensation claimants.
  • Workplace accommodations (equipment, modified duties or schedule, breaks, leave of absence, food or drink at a workstation, etc.).
  • Any other term, condition, or benefit of employment.

Also, be familiar with the federal laws identified above and the laws of your state. What protections do they provide for pregnant employees?  What do you need to do to be compliant?

Review the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. Issued in 2014 and revised in 2015; this is a comprehensive guidance regarding treatment of pregnant employees under various federal laws.


UPCOMING EVENT!  I will be presenting at the DMEC Denver Chapter Meeting on the topic “Employers: Beware of Caregiver Protections!” Thursday February 23 at 2:30.  I will address the pregnancy issues discussed above and much more.  Please join me!  Click on the link for more details and to sign up.

For more information on the caregiver topic, see our post What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California.

                                                           

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.