From the desk of Tracie DeFreitas, M.S., Program Leader, Director of Training and Outreach
A new law, the Pregnant Workers Fairness Act, is effective on June 27, 2023.
Pregnancy can be a joyous and exciting time for expecting workers, but it can also present challenges at work for some individuals who experience limitations or complications associated with their pregnancy. When pregnancy-related limitations develop, an employer may have to consider making work-related modifications to enable a pregnant worker to remain in the workforce during pregnancy. Both the individual and the employer should work together to identify ways to manage the potential impact of pregnancy-related limitations on performance of job functions. As part of this interactive process, it is important to be aware of the various laws that can require job-related modifications or leave for pregnant workers, including the federal Pregnancy Discrimination Act (PDA), ADA, and Family and Medical Leave Act (FMLA), as well as the many state and local non-discrimination, pregnancy-disability, and family leave laws that apply to workers who are pregnant.
With the maze of statutes that can apply in pregnancy-related situations, it is challenging for employers to figure out their responsibilities and for pregnant workers to understand their rights. How far must an employer go to make modifications? What is reasonable? Are all pregnant employees entitled to job-related modifications, or shall we say, accommodations? To get past the bump, JAN suggests starting with the PDA simply because it is currently the only federal statute that specifically applies to pregnancy in the workplace. The PDA forbids employment discrimination based on pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law requires employers to treat a pregnant employee who is temporarily unable to perform, or is limited in performing, the functions of her job because of her pregnancy-related limitations in the same manner as it treats other employees similar in their ability or inability to work (EEOC, 2014).
Under the PDA, a covered employer is responsible for making job-related modifications [also thought of as accommodations] for pregnant workers that are similar to those made for other employees who are temporarily unable to perform job functions. The duty to request a change in job duties falls on the employee who is pregnant. An employer can request reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. A change in duties can include light duty, alternative assignments, additional breaks, or unpaid leave, if these types of modifications are provided to other workers who are not pregnant, but are similarly limited. According to the EEOC, this means that employers should consider providing modifications, like light duty, for employees who are pregnant in the same way they do for employees on workers’ compensation or who are being accommodated under the ADA, without making an entitlement distinction based on the source of the employee’s limitations.
Recently, the U.S. Supreme Court issued a decision in the long anticipated pregnancy-discrimination case of Young v. United Parcel Service of America, Inc. (UPS). This is the case of Peggy Young, a UPS driver who requested a light duty assignment due to a lifting restriction associated with her pregnancy. UPS denied her request, even though it had a practice of offering light duty assignments to other employees who were temporarily unable to lift or perform more strenuous duties. UPS argued that the decision to deny Young’s request was based on a policy to only provide light duty to accommodate workers who were either injured on-the-job, were covered under the ADA, or who lost their Department of Transportation certification to drive. Young filed against UPS under the PDA, claiming that UPS failed to provide her the same accommodations it provided to employees who were not pregnant, but who were similar in their ability to work.
The Supreme Court did not necessarily rule in favor of Young or UPS in this case. The Court essentially decided that employers have a high burden of justifying policies or practices that provide accommodations to some categories of employees, but not to workers who are pregnant. Ultimately, this case establishes that when accommodations like light duty are already provided to some employees, it may be difficult for an employer to demonstrate that there is good justification for not accommodating workers who are pregnant who have similar limitations. The Court’s decision can be interpreted as a warning flag to employers, encouraging them to treat pregnant employees’ requests for work-related changes under the PDA similarly to accommodation requests under the ADA, and to engage in an interactive process. This case was remanded to the lower court to determine if UPS can meet the burden of justifying its policy regarding light duty. However, since the case was filed, UPS has voluntarily changed its accommodation policy to not exclude pregnant workers.
While the Young case did result in significant findings from the Supreme Court under the PDA, the case may not have as much impact on post-ADA Amendments Act (ADAAA) pregnancy-related situations. Changes in the interpretation of the definition of the term "disability" resulting from enactment of the ADAAA make it much easier for workers who are pregnant who have pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADA (EEOC, 2014). Pregnancy alone is not considered a disability under the ADA (because it is not an impairment), but a worker who is pregnant can now be protected under the ADA in many situations. For example, a pregnant employee may be entitled to reasonable accommodation for substantial limitations resulting from pregnancy-related complications or for limitations resulting from an exacerbation of an existing impairment due to pregnancy (e.g., pregnancy-related anemia, gestational diabetes, preeclampsia, substantial lifting restrictions, bed rest, etc.). Accommodations may include a modified schedule, ability to have snacks or drinks at a workstation, a modified attendance policy, frequent breaks, light duty, or leave, among other solutions.
Remember, the maze leads to not only federal pregnancy-related non-discrimination laws, but also protections against pregnancy discrimination, accommodation requirements, and leave rights and responsibilities at the state and local levels. For example, some states, like Illinois (effective January 2015), have enacted laws that expressly require employers to provide reasonable accommodations to employees who have work-related limitations due to pregnancy, childbirth, or a related condition, barring undue hardship. Be prepared to comply with state laws that offer broader protections than federal laws. The U.S. Department of Labor (DOL) maintains a Website that offers information about state-level employment protections for workers who are pregnant or nursing. To access this information, visit http://www.dol.gov/wb/maps.
JAN Consultants can assist employers and workers who are pregnant by offering information and technical assistance regarding the maze of federal statutes, guiding them through the interactive process, and providing accommodation solutions and resources. The following tips may be useful to employers who are struggling to manage pregnancy-related issues in the workplace:
- Be informed: Know your responsibilities under federal, state, and local pregnancy-related regulations. Gather information and take advantage of resources that offer technical assistance, like JAN, the EEOC, and the DOL. Being informed about the regulations will better equip employers to develop non-discriminatory policies and procedures.
- Review and update accommodation policies: While accommodation policies do not need to expressly state that accommodations will be provided to workers who are pregnant, ensure that workers who are pregnant are not excluded from accommodation consideration. Do not make distinctions about accommodation entitlement based on the source of limitations. Using a reasonable accommodation framework for pregnancy-related situations simply makes sense.
- Train managers, supervisors, and human resource professionals: Train management to recognize and respond to requests for work-related modifications by engaging in an interactive process when an employee expresses a need for a change at work due to a medical impairment.
- Engage in an interactive process: Upon receiving a request for accommodation, have an open dialogue with the employee about her specific request. Gather reasonable medical documentation, if needed. Discuss accommodation ideas. Implement reasonable accommodations that will enable the employee to remain in the workforce during her pregnancy. Document your efforts, regardless of the regulation(s) that may apply to the situation.
For more information about responsibilities and rights under the PDA and ADA, view JAN's A to Z: Accommodation Ideas for Pregnancy.