The Pregnant Workers Fairness Act, which went into effect in June, requires employers with 15 or more employees to make reasonable accommodations for a worker’s known limitations related to pregnancy, childbirth or related medical conditions. Attorneys for the Equal Employment Opportunities Commission discussed workers’ rights and employer responsibilities under the law on Tuesday during a webinar.
“A limitation can be a minor problem or something more serious,” EEOC attorney Ingrid Dietsch-Field said. “For example, it can be needing to avoid something in order to maintain your health or the health of your pregnancy, or it can be attending healthcare appointments for pregnancy, childbirth or related medical conditions.”
EEOC attorney Denesha James added that limitations might be caused by morning sickness, migraines related to pregnancy, fatigue, an increased need to use the restroom or needing to drink water regularly, or conditions such as high blood pressure, postpartum depression, lactation, a miscarriage or gestational diabetes.
But for employers, Dietsch-Field said, “if the accommodation would cause an undue hardship, which means significant difficulty or expense, they do not need to provide the accommodation.”
Reasonable accommodations
Examples of reasonable accommodations under the PWFA, according to James, would be providing additional breaks, longer breaks or more flexible breaks so an employee could drink water, eat, rest or use the restroom. Additionally, an accommodation may involve changes to the pregnant employee’s uniform or safety equipment.
“It’s important to remember that these are just a few examples. There are many possibilities about what may work for you and your work,” James said.
Dietsch-Field noted that under the PWFA, a worker can have job duties suspended under certain circumstances, as long as the worker’s inability to do the job duties will be temporary, that is, generally around 40 weeks. The temporary suspension of job duties must be able to be reasonably accommodated to help the employee continue to work.
“So, let’s say that there’s a worker at a fulfillment center who’s three months pregnant [and] has a job that regularly requires lifting boxes that weigh 20 pounds. The employee has a lifting restriction of 10 pounds because of their pregnancy,” Dietsch-Field said. “Also, the employer has a light duty program for workers who are hurt on the job.”
In this case, the employee’s need to stop lifting 20 pounds is temporary, and the employee will be able to return to normal duties once the pregnancy is over. The suspension of the job duty can be accommodated for the pregnant worker using the light duty program, Dietsch-Field said.
‘Even if the employer does not have a program, the employer may be able to accommodate the temporary suspension of the duties, for example, by only assigning items of 10 pounds or lighter to the employee and having other employees lifting the heavier items,” Dietsch-Field said.
Leave, paid or unpaid, also can be provided as a reasonable accommodation under the PWFA, according to Dietsch-Field. The leave can be for medical appointments, including regular prenatal appointments, to recover from childbirth or recover from a miscarriage, or to receive healthcare treatment.
Employee’s responsibility
Employees must ask for reasonable accommodation when needed, Dietsch-Field said, adding that two things needed: Employees first must explicitly state that they have a limitation related to pregnancy, childbirth or a related condition. Secondly, employees must state what accommodations they require.
Employees do not need to use special words or phrases, such as citing the PWFA, Dietsch-Field said. “And you [employee] don’t need to make the request in writing or in any special form. It can be done by a brief conversation,” she added.
An employer typically does not need specific documentation to make a reasonable accommodation, except in limited circumstances, Dietsch-Field said. And even then, the employer can only ask for enough information to confirm that the worker has an issue related to pregnancy, childbirth or related medical conditions and needs a change at work because of that problem or limitation, she said.
Undue hardship
Under the PWFA, employers are not required to make accommodations if doing so would cause undue hardship to the employer, such as significant difficulty or expense.
“Also, it’s important to know that if there is more than one accommodation that will work, an employer can choose between the accommodations,” Dietsch-Field said, telling workers that “the employer does not have to give you the accommodation you ask for, as long as the one the employer gives you meets your needs.”
Retaliation
The PWFA prohibits employers from retaliating in any way against workers who seek reasonable accommodations related to pregnancy, James said. Examples of retaliation, she said, would include taking away an employee’s shifts, cutting hours, giving the employee worse assignments or disciplining the employee because of a requested accommodation.
