Pregnant? Your Employer Must Provide Accommodations

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By Erika Jacobsen White

Workers with pregnancy-related conditions and covered employers now have clear guidance regarding accommodations that must be provided to employees.

The Equal Employment Opportunity Commission (EEOC), the government agency responsible for enforcing federal laws to protect against workplace discrimination—issued its final rule this spring to implement the Pregnant Workers Fairness Act (PWFA)—a law in effect since last June.

The final rule, which goes into effect on June 18, sets out key provisions that will provide protections to workers “affected by pregnancy, childbirth or related medical conditions.”

For first-time parents or working mothers with another child on the way, here’s what to know about the final rule to ensure your rights are protected.

What does the PWFA do?

Broadly, the PWFA requires qualified employers to provide reasonable accommodations to employees or job applicants with conditions related to pregnancy.

The law requires an employer to participate in an interactive process with its employees to determine reasonable accommodations and prohibits that employer from forcing an employee to take leave if accommodations exist that would not impose an undue hardship on the employer.

According to the PWFA, employers cannot discriminate or retaliate against an employee because they requested or used these accommodations or complained about conduct by the employer made illegal by the PWFA.

What conditions qualify for accommodations?

The final rule broadly defines pregnancy, childbirth and related medical conditions as qualifying conditions for workplace accommodations. The severity of the condition—whether physical or mental—is not a factor in determining coverage, and the condition need not be disabling.

As long as it’s related to, affected by or arises from pregnancy, childbirth or related conditions, the employer is required to provide accommodations in the workplace.

This includes conditions related to both current or past pregnancies, fertility or infertility treatments, lactation (including breastfeeding and pumping), the use of birth control, menstruation, endometriosis, miscarriage, stillbirth or abortion.

If a pregnancy exacerbates a pre-existing condition, such as diabetes, high blood pressure, anxiety or depression, those conditions are also covered.

What if I can’t perform essential job duties while pregnant?

Significantly, under the PWFA, an employee qualifies for coverage even if they are unable to temporarily perform one or more essential functions of their job.

As long as you can perform the essential functions of your job in the “near future,” you will be covered, and your employer has to provide reasonable accommodations.

This means that your employer may be required to temporarily suspend or reassign
essential functions of your job or allow a temporary transfer to a light duty position. There must be an interactive process to determine an accommodation that does not impose undue hardship on the employer.

Your employer needs to be made aware of your needs but cannot make the process difficult. In order to be protected by the PFWA, you (or your representative) need to
tell your employer that you need accommodations and why.

Once you let your supervisor or Human Resources department know what your limitations are and follow company policies to request accommodations, your employer cannot make the process overly complicated or make you wait to receive simple accommodations, such as extra bathroom breaks. You can request accommodations verbally or in writing.

What happens if your employer refuses to make accommodations or retaliates against you?

If you think you have been denied reasonable accommodations for a qualifying condition, or if your employer retaliates against you for trying to get accommodations, you should contact an employment lawyer to determine your rights.

You can best protect yourself by putting any requests for accommodations in writing, as well as any complaints about discrimination or retaliation. It is also important to act quickly in order to preserve your rights. You have a limited time to file your claims or you can lose your right to sue.

Erika Jacobsen White is an employment and civil rights lawyer with Joseph, Greenwald & Laake, P.A. in Greenbelt, Maryland, who practices in D.C. and Maryland.

She currently serves as the chair of First Shift Justice Project, a D.C.-based nonprofit that provides free legal services to low-wage working parents and caregivers to help them assert their workplace rights in order to prevent job loss.

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