Pregnant Employees Now Have More Rights
If you have any questions about employment discrimination, our discrimination attorneys can help you. Since June of this year, pregnant workers now enjoy far greater protections under the law. Although the Americans with Disabilities Act (ADA) and Title VII as amended by the Pregnancy Discrimination Act have been used to curb discrimination due to pregnancy status, the ADA does not generally include pregnancy as a “disability.” However, under the Pregnant Workers Fairness Act (PWFA), an employee’s known limitations related to, arising from, or affected by pregnancy, childbirth, and other related medical conditions now require reasonable accommodations be made by her employer.
The definition for “known limitation” under the PWFA includes conditions affected by, related to, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to her employer, regardless of if the condition would qualify as a disability under the ADA. The PWFA functions to fill the gap in the ADA for pregnant employees, and similarly exempts employers when certain accommodations would constitute undue hardship to the employer. Further, both the ADA and PWFA apply only to employers with 15 or more employees.
At the same time, the PWFA expands protections for pregnant workers further than the ADA would. Most notably, the PWFA diverges from the ADA in that, unlike the ADA, the EEOC’s interpretation of the PWFA suggests that temporary suspension of an essential job function could be considered “reasonable.” Legal challenges under the ADA, on the hand, rarely find that temporary suspension of an essential job function/duty would be a reasonable accommodation for an employee’s disability. Although the PWFA incorporates the ADA’s definitions for “reasonable accommodation” and “undue hardship,” it expands the ADA’s definition of “qualified employees” to include employees where the inability to perform an essential function is temporary, the essential function could be performed within 40 weeks, and/or the inability to perform the essential function could be reasonably accommodated.
Requests for accommodations under the PWFA may be made orally, in writing, or by another effective means, and the employer cannot require that the request be made in any specific format. Unlike the ADA, PWFA accommodations would not typically require documentation or verification, being that requesting and establishing a reasonable accommodation for a limitation related to or arising from pregnancy is relatively uncomplicated and the EEOC anticipates that such determinations could be made after directly conversing. To the extent that the employer has reasonable concerns as to whether a limitation relates to or arises out of a pregnancy, childbirth, or related medical condition, it may request information regarding the connection. Nevertheless, it is apparent that the EEOC considers certain PWFA accommodations to be straightforward and easily accommodated, such as allowing a pregnant cashier to sit instead of stand while working. Likewise,
Furthermore, employers are barred from requiring a pregnant employee to take time off work when other reasonable accommodations could be provided that would enable the employee to keep working. Employers cannot force an employee to accept an accommodation without having engaged in the interactive process referred to in Title 42, section 2000gg(7). For example, an employer cannot force a pregnant employee to temporarily transfer positions as an accommodation for the employee’s limitation.
In addition to current pregnancy and childbirth, the PWFA significantly expands protections to a host of conditions related to pregnancy which could include but are not limited to past pregnancy, potential pregnancy, lactation, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth. Furthermore, the PWFA’s coverage of limitations arising out of or related to pre-pregnancy conditions could also apply to various other conditions that, absent the pregnancy, would not have needed accommodations under the ADA, or that would not have needed further accommodation, such as type 2 diabetes or high blood pressure.
As another contrasting point to the ADA, the text of the PWFA does not define a severity threshold, and as such, physical and mental conditions that would require accommodations need not be chronic and severe. Otherwise, the transient nature of pregnancy and conditions arising from pregnancy would frustrate the purpose of the PWFA. In contrast, under § 12102 (3), an ADA qualifying impairment must not be minor and transitory (lasting 6 months or less.
Similarly to the ADA, the PWFA prohibits retaliation or other such interference with an individual’s exercise of rights under the PWFA, such as requesting or utilizing an accommodation.
The broad brush of PWFA provides extensive protection for pregnant employees and facilitates women’s health and economic stability. An employer is required to demonstrate a good faith effort to consult with the employee so as to identify and make a reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions.
Contact our Pregnancy Discrimination Lawyers for a Free Consultation.
If you believe that you have experienced any pregnancy discrimination at work, please contact our pregnancy discrimination attorneys. Our experienced pregnancy discrimination lawyers will advise you of your rights.
