JAN Newsletter - July 2023

Question

We have a pregnant employee who is limited in lifting, requires frequent breaks to use the restroom, and is requesting to telework three days a week to address pregnancy-related limitations affecting their commute to work. We want to make some adjustments for this employee but are there laws that require employers to accommodate workers who are pregnant?

Answer

Several federal laws may apply to covered employers when an employee is pregnant. These laws include the Pregnant Workers Fairness Act (PWFA), Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). Combined, these laws:

• Prohibit employment discrimination against workers based on pregnancy, childbirth, or related medical conditions;
• Require covered employers to make reasonable accommodations for workers with known limitations related to pregnancy, childbirth, or related medical conditions;
• Require covered employers to make reasonable accommodations for workers with pregnancy-related disabilities; and
• Extend the right to job protected unpaid leave.

Many state laws also provide protections for workers who are pregnant.

The PWFA explicitly requires covered employers to make reasonable accommodations for workers with known limitations related to pregnancy, childbirth, or related medical conditions to enable them to continue working safely during their pregnancy unless it creates an undue hardship for the employer. Possible accommodations under the PWFA may include:

• Allowing telework
• Providing access to seating
• Modifying a work schedule to allow shorter hours or a later start time
• Granting additional, longer, or more frequent breaks
• Making exceptions to food and drink policies
• Providing closer parking
• Allowing leave for medical appointments or to recover from childbirth
• Providing a temporary reassignment

The Equal Employment Opportunity Commission (EEOC) has not yet issued regulations to carry out the law, but the PWFA is in effect as of June 27, 2023. For more information, see the EEOC’s What You Should Know About the Pregnant Workers Fairness Act.

The accommodation requirements and terms like "reasonable accommodation" and "undue hardship" in the PWFA will be familiar to covered employers preparing to comply with this new federal law because the PWFA is in many ways like the ADA. To help determine effective accommodations, employers and workers with known limitations related to pregnancy, childbirth, or related medical conditions who request accommodations can work together in an "interactive process" to come up with accommodations. A similar process used under the ADA may be applied to explore and implement effective reasonable accommodation solutions under the PWFA.

JAN can be a partner in the accommodation process by providing accommodation solutions, technical assistance, and resources to facilitate inclusion of workers who are pregnant. To help prepare employers to make PWFA accommodations, the following tips might be useful:

• Be informed: Know your responsibilities under federal and state pregnancy-related laws. Gather information and take advantage of resources that offer technical assistance, like the EEOC, Department of Labor (DOL), and JAN. Being informed about the law will better equip you to develop non-discriminatory policies and procedures. Also, update your EEO poster.
• Review and update accommodation policies and procedures: Ensure that workers affected by pregnancy, childbirth, or related medical conditions are not excluded from accommodation consideration. Update reasonable accommodation policies to include the right to reasonable accommodation for workers with known limitations related to pregnancy, childbirth, or associated medical conditions. This might include editing or creating a form that employees can use to request an accommodation under the PWFA, and/or a form used to collect medical information, when necessary.
• Train supervisors, managers, and human resources professionals on the various federal and state laws that apply in pregnancy-related situations. Teach them to recognize and respond to requests for accommodation and engage in the interactive accommodation process.

• Accommodation and Compliance: Pregnancy
• Accommodation and Compliance: Interactive Process
• EEOC's Pregnancy Discrimination and Pregnancy-Related Disability Discrimination
• EEOC's What You Should Know About the Pregnant Workers Fairness Act
• EEOC's Pregnant Workers Fairness Act – What Employers Need to Know Webinar
• EEOC's Know Your Rights – Pregnancy Discrimination Video
• EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues
• EEOC's Questions and Answers About the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues
• EEOC's Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work
• "Know Your Rights: Workplace Discrimination is Illegal" Poster
• Pregnant Workers Fairness Act (PWFA) Infographic
• Pregnant Workers Fairness Act (PWFA) Poster
• Family and Medical Leave Act (FMLA)
• PUMP Act
• JAN Webcast – Accommodation and ADA Considerations: Reproductive Disorders and Pregnancy (05/12/2022)

JAN Webcast Offers Strategies for Handling Performance and Conduct Issues

Sometimes limitations related to a disability can contribute to performance or conduct issues at work. What steps are appropriate when a disability is, or seems to be, causing a performance or conduct issue? When may an employer raise the issue of an employee's disability as part of a discussion about performance or conduct? The JAN Webcast "What to Do When Performance and Conduct Factor Into the Accommodation Equation" includes strategies for handling performance and conduct issues and engaging in the accommodation process.

View the Performance and Conduct Webcast

Learn About Accommodation Solutions for Fine Motor Limitations

The JAN webcast "Accommodation Solutions for Fine Motor Limitations" explores accommodation solutions, including assistive technologies, to address fine motor limitations relevant to working in various industries. In the recorded webcast, JAN Motor Team Consultants discuss accommodation ideas for limitations related to grip and grasping, reaching, and mousing and keyboarding. Many fine motor limitations can stem from an acute injury or medical condition or result from a lifelong impairment.

View the Fine Motor Limitations Webcast

Creating a Disability-Inclusive Workforce: The Role of Accommodations Webinar

To celebrate the anniversaries of the Rehabilitation Act of 1973 (Rehab Act) and the Americans with Disabilities Act (ADA) of 1990, the Employer Assistance and Resource Network on Disability Inclusion (EARN) hosted a discussion on the significance of accommodations in achieving the goals of the Rehab Act and the ADA and how they contribute to creating inclusive workplaces. The webinar was hosted on 07/21/23.

View the EARN Webinar

EARN Fact Sheet Explores Intersections of Inclusion

EARN's fact sheet, "Disability Inclusion: Exploring the Intersections," shares information about the connection between inclusion of LGBTQI+ employees and disabled workers. The resource also details best practices for creating inclusive workplace cultures that enable all employees to feel supported and accepted.

Read the EARN Fact Sheet

National Disability Employment Awareness Month 2023 Theme Announced

To mark two significant events in 2023 for people with disabilities, the U.S. Department of Labor recently announced its Office of Disability Employment Policy (ODEP) has selected themes to promote National Disability Employment Awareness Month (NDEAM) and honor the 50th anniversary of the passage of the Rehab Act. ODEP has chosen "Advancing Access and Equity" as its theme for NDEAM in 2023. Observed each October, NDEAM celebrates the contributions of America's workers with disabilities past and present and showcases supportive, inclusive policies and practices that benefit employees and employers alike.

Learn More About the NDEAM Theme