On July 27, 2017 Massachusetts Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act (“MPWFA”), a bill which had unanimously passed in both the House and Senate. As discussed previously, the MPWFA (formerly H. 3816) ensures that pregnant workers or workers with pregnancy-related conditions (such as nursing) receive reasonable accommodations and protection from discrimination and retaliation under Mass. Gen. Laws Chapter 151B.

Although the MPWFA will not take effect until April 1, 2018, employers in the Commonwealth can begin now to prepare to implement the MPWFA’s new requirements.  For instance, employers should consult with counsel as they begin to:

  • Evaluate and revise their handbooks, paying special attention to adapting existing handbook provisions regarding anti-discrimination and retaliation, so as to explicitly incorporate pregnancy and pregnancy-related conditions as protected categories;
  • Consider current policies and practices pertaining to rest and meal breaks, pregnancy-related leaves, and reasonable accommodations, to consider what adjustments could be made for pregnant employees and employees with pregnancy-related conditions;
  • Ensure that employees have access to private non-bathroom spaces for nursing or expressing breast milk, which the MPWFA considers to be a reasonable accommodation (and which is already required under federal law);
  • Anticipate providing notice (by way of handbook, pamphlet, or other means) to current employees of the right to be free from discrimination in relation to pregnancy or a pregnancy related condition, as such notice must be provided on or before April 1, 2018;
  • Prepare to implement a system such that employees who notify the company of pregnancy or a pregnancy-related condition will receive notice of their rights under the MPWFA within ten (10) days of having given notice.

It bears noting that while an employer may require documentation about the need for a reasonable accommodation from an appropriate health care or rehabilitation professional, an employer may not require documentation for the following accommodations: (i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.

The MPWFA also suggests that other reasonable accommodations may include unpaid time off to attend to a pregnancy complication or to recover from childbirth with or without pay; acquisition or modification of equipment; seating; temporary transfer to a less strenuous or hazardous position; job restructuring; light duty; assistance with manual labor; and modified work schedules. Employers should remember to engage in the interactive process of arriving at a reasonable accommodation with pregnant employees or employees with pregnancy-related conditions.

Proskauer will continue to provide updates to notify Massachusetts employers regarding any subsequent guidance or regulations pertaining to the MPWFA.

Special thanks to Tom Fiascone, a Summer Associate in the Boston office, for his assistance in preparing this post.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.