Accommodating Pregnancy Under State and Federal Law

Laws requiring both public and private employers to accommodate their pregnant employees have become a trend over the past several years.  Indeed, this past July, Massachusetts became the 22ndstate, along with the District of Columbia, to pass a law that requires an employer to engage in the interactive process and provide an accommodation to a pregnant employee, where that accommodation would not put an undue burden on the employer.  It joins the states of Nevada, Vermont, and Washington, all of which passed similar laws in 2017.  Additionally, many of these state laws provide clear protections against discrimination based on pregnancy and pregnancy-related conditions.  Although the Americans with Disabilities Act (“ADA”) does cover some impairments related to pregnancy and the birth of a child, state laws regulating pregnancy accommodation generally expand that coverage to pregnancy, child birth and related conditions that may not rise to the level of a disability under the ADA.

Pregnancy Accommodation Under Federal Law

Title I of the ADA prohibits discrimination against employees or applicants due to their disability or perceived disability, and requires employers to accommodate disabled employees if they can still perform the essential functions of their job.  The ADA applies to employers with 15 or more employees and mandates that those employers accommodate a disabled employee’s condition as long as the accommodation would not cause undue hardship on the company.  Under the ADA, pregnancy itself is not a disability; however, the ADA does cover impairments related to pregnancy and birth that would qualify as disabilities under the ADA.

For example, the Equal Employment Opportunity Commission has stated that such conditions as pregnancy-related carpal tunnel syndrome, preeclampsia, gestational diabetes and pregnancy-related sciatica would all likely be disabilities covered by the ADA, even though temporary.  Thus, if a pregnant employee suffers from pregnancy-related sciatica and complains to her employer of this condition, her employer is required to provide a reasonable accommodation, such as temporarily reassigning the employee to light duty or permitting the employee to take more frequent rest breaks, as long as it would not create an undue hardship.

In addition to the ADA, the Family and Medical Leave Act (“FMLA”) and the Pregnancy Discrimination Act (“PDA”) provide further requirements related to pregnant employees.  In the context of pregnancy, the FMLA requires employers to permit employees up to 12 weeks of unpaid leave for the birth or care of a newborn child, and for their own serious health condition, while the PDA mandates that pregnant employees or women affected by childbirth or related conditions be treated the same as all other non-pregnant employees or applicants.  Thus, under the PDA, if non-pregnant employees that complain of back pain are routinely given light duty assignments, a pregnant employee complaining of back pain should also be given a light duty assignment even if the pain is not severe enough to constitute a disability under the ADA.  Additionally, employers need to remember that Title VII of the Civil Rights Act also prohibits employers from discriminating against women affected by pregnancy or childbirth as a form of sex discrimination.

It is important to keep in mind that pregnant employees and applicants, or those affected by childbirth or related conditions, do not have to be treated better than other employees, but must be treated akin to those experiencing similar conditions.

Pregnancy Accommodation Under State Law

Where states have passed laws regarding protections for pregnant workers, those laws have generally expanded the requirement to accommodate beyond the limits of the ADA.  For instance, The Massachusetts Pregnant Workers Act, which goes into effect on April 1, 2018, mandates that employers provide reasonable accommodations to pregnant workers for any pregnancy or a condition related to pregnancy.  Thus, the pregnancy, or a pregnancy-related condition including, but not limited to, lactation or need to express breast milk, must be accommodated if requested, even if the worker’s condition does not meet the standard for a disability under the ADA.  The Massachusetts law lays out examples of what would constitute a reasonable accommodation, including more frequent or longer breaks, time off to recover from child birth, light duty, and assistance with manual labor, although the law also notes that an accommodation is not limited to these specific options.

Like the ADA, the Massachusetts law does not require an accommodation be provided where it would cause an undue hardship on the employer and lays out the specific factors that must be considered in assessing undue hardship, such as the nature and cost of the accommodation and the overall financial resources of the employer.  Additionally, under this law, an employer can require documentation of the need for a reasonable accommodation from an appropriate health care or rehabilitation professional.  Significantly, however, such documentation cannot be required for certain accommodations, including more frequent restroom, food or water breaks; seating; or limits on lifting over 20 pounds.  Aside from the accommodation component of the Massachusetts law, it also specifically delineates what would constitute impermissible discrimination based on pregnancy or a pregnancy-related condition such as taking an adverse action against an employee who requests or uses a reasonable accommodation.

The District of Columbia, which passed its own law regarding pregnancy accommodation called the Protecting Pregnant Workers Fairness Act of 2014, similarly requires reasonable accommodation for any employee whose ability to perform her job is limited by pregnancy, childbirth, breastfeeding or a related medical condition, unless such accommodation would cause undue hardship on the company.  The District of Columbia’s law also lays out typical accommodations for a covered employee much like those provided for in other states’ laws, including relocating the employee’s work area, acquisition or modification of equipment or seating, and providing private non-bathroom space for expressing breast milk.  The law also permits District of Columbia employers to require certification from a medical health care provider to show the accommodation is advisable, and does not limit the types of accommodation for which such documentation can be requested.  In addition, the District of Columbia law prohibits discriminatory treatment of a pregnant worker, such as requiring an employee to take leave if another accommodation can be provided or denying an employment opportunity due to the worker’s request for an accommodation.

Beyond the requirements of these state laws, it’s important to remember that they tend to apply to a larger number of employers due to the lower employee threshold that triggers their requirements.  For example, Connecticut’s law, which requires reasonable accommodations for employees and applicants based on pregnancy, childbirth, or related conditions, applies to all employers with at least 3 employees.  A similar California law applies to all public employers and private employers with 5 or more employees, while the District of Columbia and New Jersey laws apply to all employers.

Many of the state laws also usually require some form of notice to employees of the rights the law protects and its relevant provisions.  The applicable law may provide for a specific notice to be circulated or posted, such as the District of Columbia and Maryland, or may more broadly define the notice requirement, giving employers an option of how to provide it.

In sum, although state pregnancy laws have many similarities and some important differences, they are generally consistent in expanding protections similar to the ADA to any employee affected by pregnancy or child birth, and it is likely that any enforcement body will view the accommodations outlined in these laws as reasonable for most, if not all, employers.

What Employers Should Do to Comply

Because pregnancy accommodation laws vary from state to state, it is important for employers to be aware of the specific requirements of the law in each state in which they operate.  For example, one state may permit an employer to require medical documentation no matter the type of accommodation, while another state, like Massachusetts or Washington, restricts the employer’s ability to request documentation for certain types of accommodations like seating or longer/more frequent rest breaks.  Even an employer operating only in a single state should be aware of the nuances of any pregnancy accommodation law, such as whether the law is even applicable based on the size of the employer.

If an employer operates in a state with a pregnancy accommodation law, it should ensure that its handbook, as well as any relevant stand-alone policies, clearly notify employees of their rights and how to exercise those rights to obtain an accommodation.  Additionally, because many state pregnancy laws require an employer to subsequently notify an employee of their rights if the employee informs the employer of a pregnancy or a pregnancy-related condition, employers in those states must be prepared to provide additional notification in that circumstance.

Finally, employers should ensure that they provide training to management about how to effectively address the need for an accommodation to ensure that pregnant workers or workers with a pregnancy-related condition are provided an appropriate accommodation, and are not treated any differently for requesting or receiving that accommodation.

Lindsay Disalvo

Lindsay A. DiSalvo is an Associate in the Washington, DC office of Conn Maciel Carey LLP. Ms. DiSalvo represents and advises employers in all aspects of the employer-employee relationship including wage and hour disputes, claims of employment discrimination, and compliance with the Americans with Disabilities Act. Ms. DiSalvo also reviews and revises employee handbooks and workplace policies and procedures, and prepares separation and settlement agreements. In addition, Ms. DiSalvo represents employers during inspections and investigations conducted by the federal Occupational Safety and Health Administration (OSHA) and state OSHA programs, and handles the full range of OSHA litigation, from citation contests to administrative hearings. Ms. DiSalvo also advises and counsels employers in responding to notices from OSHA about employee complaints of safety hazards, and helps develop and audit safety and health programs.

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