This is a follow-up article on changes in employer accommodation law. Last week’s article addressed the increased level of accommodation required for employees’ religious beliefs – New Year’s Review of Legal Changes in Employment Accommodation. The following addresses changes in the law underway on increased employer obligations to accommodate pregnant employees. Accommodation is now required by employers for non-serious pregnancy related conditions.
Pregnancy Accommodation
The 1990 Americans with Disabilities Act (ADA) requires employers to reasonably accommodate an employee whose medical condition substantially impairs one or more of the employee’s major life activities. The ADA Amendments Act of 2008 (ADAAA) kept this qualification requirement but directed that it be more liberally interpreted in favor of employees. The main impetus for the amendments was to negate two U.S. Supreme Court decisions. For example, the amendments state that the analysis of whether an employee qualifies under the ADA as having a substantial impairment is to be made before or without consideration of medical mitigation measures (e.g., assistive devices, medications, etc.) that lessen the impact on the employee, except as to ordinary eye glasses or contact lenses. The Supreme Court earlier ruled that this analysis was to be done based on the employee’s situation after/with the benefit of medical mitigation measures.
This still means that the ADA does not cover employees with temporary minor ailments. For example, the EEOC stated “[r]egulations implementing ADAAA state that normal pregnancy is not a covered disability, but pregnancy related complications may be.” Fed.Reg., v. 76, N. 58, at 16980 and 17007 (Mar. 5, 2011). Accordingly, for many years the most typical symptoms of pregnancy did not trigger an employer’s accommodation obligation. The 1978 Pregnancy Discrimination Act, which amended Title VII of the 1964 Civil Rights Act, required employers to treat pregnancy no differently than other medical ailments, including those not exclusive to females, when making employment decisions or providing fringe benefits; but this did not necessarily trigger an accommodation obligation. Also, the PUMP for Nursing Mothers Act (“PUMP Act”), enforced by the U.S. Department of Labor’s Wage & Hour Division, requires most employers to provide employees nursing a newborn with reasonable break time in a place shielded from view and free from intrusion to express breast milk while at work, for one year after giving birth (this expands the coverage of the 2010 amendments to the Fair Labor Standards Act requiring lactation breaks for most non-exempt employees, for example the PUMP Act applies to exempt employees also).
The Pregnant Workers Fairness Act (PWFA), effective in mid-2023, changed this, as described below. Although this law required the EEOC to issue regulations under it by December 29, 2023, the Commission has not yet done so. Not knowing how much longer we’ll have to wait for these, while claims can be filed in the meantime, we provide the following points.
The PWFA requires employers to accommodate all symptoms of pregnancy and childbirth, regardless of their severity, unless the accommodation would pose an “undue burden.” Specifically, the statute states its accommodation requirements apply to any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether or not such condition meets the definition of disability specified in [the ADA].” 42 U.S.C. § 2000gg(4). Note also that this wording requires the employee, or a representative of the employee, to make the employer aware of their pregnancy related condition. An issue of interpretation here is whether this required “communicat[ion]” has to be an explicit request for accommodation. I suspect not and predict that courts will consider any statement (and even a less direct verbal or non-verbal means by which the employer becomes aware of the condition, such as by observation) will be sufficient. A key to this analysis is that the non-discrimination provision of the statute does not say it is unlawful for an employer to deny an employee’s requested pregnancy accommodation (unless it creates an undue burden). Rather, the statute only says it shall be unlawful for an employer to “not make reasonable accommodations to the known limitations related to the pregnancy” unless doing so imposes an undue hardship on the employer. 42 U.S.C. § 2000gg-1(1). So, an employer waiting for an employee to request an obvious pregnancy accommodation when the employer is aware of the pregnancy related condition and the apparent need for accommodation may face liability.
The PWFA also goes further than the ADA in another way by providing and requiring accommodation of employees who, due to their pregnancy and/or childbirth, are unable to do the essential functions of their job, with or without accommodation, if (a) that inability is for a temporary period, (b) the essential function could be performed in the near future (which the EEOC earlier proposed to define as a year in some circumstances), or (c) the inability to perform the essential function(s) can be reasonably accommodated (without undue burden on the employer). These three items go beyond the requirements of the ADA and raise lots of questions on how to apply them. We hoped for some final regulations on these points by now (indeed the PWFA not only directed the EEOC to issue regulations by the end of 2023 but also directed the Commission to provide examples of reasonable accommodations expected for pregnancy, childbirth, and related conditions). In the absence of that, we note that the House of Representatives Committee on Education and Labor Report on the PWFA has a few examples of potential reasonable accommodations, such as the ability to sit or drink water; receive a closer parking spot; flexible hours; appropriately sized uniforms and safety clothing; additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
The PWFA also goes further by stating that leave time (paid or unpaid) cannot be required as an accommodation to pregnancy or childbirth if another reasonable accommodation can be given the employee without undue burden. This raises an interesting question as to whether an employer can deny leave time to a pregnant employee without violating the Family & Medical Leave Act if the employer provides an on-the-job reasonable accommodation to the pregnancy condition(s) involved. Neither the PWFA nor the EEOC’s proposed regulations specifically mention the FMLA, but the PWFA states it does not “invalidate or limit … [any federal, state, or local law] that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000gg-5(a)(1). It is not clear that FMLA leave time (i.e., using up paid time off or providing lower sick pay or no pay) is a “greater or equal protection” to providing accommodated work at full pay.
Similar to the ADA and other employment discrimination laws, the PWFA prohibits employer retaliation or coercion against an employee for requesting pregnancy accommodation, opposing employer violations of this law, or participating in a claim under this law. The PWFA also bars employers from imposing/implementing an accommodation without first engaging in an interactive discussion with the employee about that or other accommodations. Standard employment discrimination procedures (e.g., first filing a charge with the EEOC prior to being able to bring a lawsuit), remedies, and damages are available under the PWFA. This includes a safe harbor protecting employers from punitive and compensatory damages if the employer “demonstrates good faith efforts, in consultation with the employee with known limitations related to pregnancy, childbirth, or related medical conditions who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the [employer].” 42 U.S.C. § 2000gg-2(g).
In summary, when it comes to pregnancy, childbirth, and related conditions, employers should no longer default to the ADA accommodation approach, regardless of the temporary or non-serious nature of the employee's condition and symptoms. The interactive process encouraged by courts but not itself required under the ADA setting (although employers forgoing it act at their peril under the ADA) is required for pregnancy, childbirth and related conditions. Employers should be prepared to explain to employees the difference between the accommodations rules under the ADA and PWFA.
