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Pregnancy at Work
Editor's Note
Pregnancy at Work
The Pregnant Workers Fairness Act provides broad protections to people who are pregnant, not pregnant, no longer pregnant, and may become pregnant. It relates to both physical and mental conditions related to pregnancy, childbirth, and related medical conditions, which include menstruation and pregnancy loss. And the EEOC is enforcing its provisions.
It's worth taking some time to understand what is protected, what the interactive process is (it's different than the ADA), and what accommodations can look like. Many times, it's no big deal. Even without the law, most employers are understanding when a pregnant employee needs time off for medical appointments and maybe to sit down.
There was a judge who notoriously removed the chairs from counsel tables during oral arguments to deter the lawyers from droning on and on. But when I was pregnant and waddled in for a hearing, the court would signal to the bailiff to bring me a chair. Opposing counsel never objected until I showed up in chambers with the baby one day to discuss a temporary restraining order. Even then, the objection was "unfair cuteness."
A little compassion and kindness will get you a lot of the way.
Sometimes, things are more complicated. This often comes up when the employer doesn't know the employee is pregnant, they miscarried, or there are other issues or complications during or after pregnancy. A big issue is that the employer has to know about the condition and this generally requires the employee to disclose it and request accommodation. Even though there are multiple laws that protect against pregnancy discrimination and require accommodation, employees aren't always comfortable discussing or disclosing their pregnancy until it's really obvious or they need help or time off.
Then it's essential to understand what is an isn't protected, how to approach the particular situation in a way that complies with the law, regulations, and the related state and federal laws providing protection for pregnant and nursing workers.
Employers can make a real difference in how they treat people. I will never forget that judge or the firm I worked for at the time who were understanding and kind during a time when I felt vulnerable.
- Heather Bussing
by Elysse Gorney and Brett Owens
The Equal Employment Opportunity Commission (EEOC) recently announced a settlement to resolve a discrimination charge alleging an employer terminated a pregnant employee after she requested a reasonable accommodation to attend medical appointments. As part of the conciliation agreement, the employer agreed to pay $47,480 in damages and revise its policies and procedures. The conciliation agreement was announced just one day after the EEOC filed its first lawsuit under the Pregnant Workers Fairness Act (PWFA) and sends a stark reminder to employers regarding the requirements of the PWFA as well as the EEOC’s initiative to enforce the law’s accommodation requirements. Here are four lessons employers can learn from this settlement to avoid the same fate.
1. Revise Your Accommodation Policies to Include PWFA Requirements
You should review your accommodations policies to ensure that that they include requests related to pregnancy, childbirth, and related medical conditions. This may also include revisions to interactive process paperwork that you rely upon to review requests for accommodations. By revising your policies, you can reduce the risk of failing to engage in the interactive process with pregnant employees who are in need of an accommodation. You should also be aware that the PWFA protects both applicants and employees.
2. Train Your Managers Regarding the Nuances of the PWFA
Your managers should understand the required steps for assessing and providing accommodations under the PWFA since that they are distinct from the ADA. For example, under the PWFA, employees can still be considered “qualified” individuals if their inability to perform an essential function is just temporary and the essential functions can be performed in the near future. Managers and employees alike should understand these and other important distinctions in order to streamline the interactive process pursuant to the PWFA.
3. Familiarize Management and Employees with available Accommodations and Undue Hardship Requirements
Ideally, your managers should be able to recognize when an employee is in need of a reasonable accommodation and your employees should understand they have the ability to request accommodations to assist them in performing their job duties. The EEOC has provided voluminous examples of available reasonable accommodations:
- Frequent breaks;
- Sitting or standing;
- Schedule changes, part-time work, and paid and unpaid leave;
- Telework;
- Parking;
- Light duty;
- Making existing facilities accessible or modifying the work environment;
- Job restructuring;
- Temporarily suspending one or more essential function;
- Acquiring or modifying equipment, uniforms, or devices; and
- Adjusting or modifying examinations or policies.
Additionally, you should be aware of the analysis to consider whether an accommodation request is an undue hardship. In general, an accommodation creates an undue hardship if it causes significant difficulty or expense for the employer’s operations. Under the PWFA, employers must conduct an individualized assessment when determining whether an accommodation will impose an undue burden. If you believe a request constitutes an undue hardship, you should review the matter thoroughly with your employment counsel to ensure compliance with the PWFA.
4. Be Mindful of Other Laws Providing Protections for Pregnant Workers
The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. For example, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires employers to provide time and space for breastfeeding parents. The PUMP Act has created new protections and extends to all breastfeeding employees for the first year of the baby’s life. Notably, salaried employees are not excluded from this requirement. Additionally, time spent to express breastmilk must be considered “hours worked” if the employee is also working.
Conclusion
If you want a comprehensive recap, you can read our detailed FAQs about the PWFA here.
