A new law, the Pregnant Workers Fairness Act, is effective on June 27, 2023.
Congratulations, you’re having a baby! You’re overwhelmed with thoughts about designing a nursery, buying baby clothes, diapers (lots of diapers), and meeting your baby for the first time. Pregnancy can be a joyous and exciting time, but it can also present challenges for some workers who experience limitations or complications associated with their pregnancy. This can lead to the need to request job-related changes at work to help you meet the demands of the job and stay-on-track with the pregnancy. Workers who are pregnant should engage in an interactive process with their employer to identify ways to manage the potential impact of pregnancy-related limitations on the performance of their job functions.
Before engaging in an interactive process with your employer, learn about the various laws that offer workplace protections for pregnant workers. You don’t have to be an expert in the laws, but it helps to know which laws can apply to your situation. For example, you may be entitled to job modifications/reasonable accommodations under federal laws like the Pregnancy Discrimination Act (PDA) or the Americans with Disabilities Act (ADA). You may also be eligible for unpaid leave under the federal Family and Medical Leave Act (FMLA). There are also many state and local non-discrimination, pregnancy-disability, and family leave laws that apply to workers who are pregnant.
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 the employee’s limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. A change in duties may 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.
Pregnancy alone is not considered a disability under the ADA (because it is not an impairment), but a worker who is pregnant can be protected under the ADA in some situations. Changes in the interpretation of the definition of the term “disability” resulting from enactment of the ADA Amendments Act (ADAAA) make it easier for workers who are expecting who have pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADAAA (EEOC, 2014). 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 can 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.
When a job-related change is needed at work because of limitations or complications associated with pregnancy, it is suggested that these changes be requested in writing. Sometimes it’s useful to have a paper trail in case there is a dispute about whether or when you requested an accommodation. Support your request with information from your medical provider regarding your limitations and restrictions. No particular law must be mentioned in your letter, but you’ll want to explain what medical limitations are affecting your ability to perform job functions. This is sufficient to establish a request for accommodation and then that is when the interactive process begins.
JAN offers a document to guide employees in drafting a written request for accommodation. This document is ADA-focused, but can be used as a guide to make a written request for job-related modifications in general, under the PDA or other laws, if ADA is not applicable. For more information see JAN’s How to Request an Accommodation.
After an accommodation is requested, an employer must determine if the employee qualifies and if the accommodation that is being requested is reasonable. Employers are not required to change or eliminate essential job functions or lower production standards as a reasonable accommodation. An employee who is pregnant can be held to the same production standards as others in their job category. For information about accommodation ideas for workers who are pregnant, see the JAN Website.
JAN Consultants can assist workers who are pregnant and their employers by offering information and technical assistance regarding applicable laws, guiding them through the interactive process, and providing accommodation solutions and resources. For additional guidance, contact JAN directly. To learn more about your rights under the PDA, ADA, FMLA, and state laws, see the following resources:
- Pregnancy Discrimination Fact Sheet
- EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (EEOC, 2014)
- Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
- The U.S. Department of Labor, Wage & Hour Division — FMLA information
The U.S. Department of Labor also maintains a Website that provides information about state-level employment protections for workers who are pregnant or nursing.