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April 7 — Confusion about what accommodations are afforded to pregnant workers under federal law has prompted many states to enact their own legislation in recent years, employment attorneys told Bloomberg BNA.
“A significant number of states have recognized the importance of accommodating pregnant workers,” Sarah Fleisch Fink said. Fink is senior policy counsel for workplace programs at the National Partnership for Women & Families in Washington.
As of now, 16 states and the District of Columbia have pregnancy accommodation laws,” Fink said. The Utah legislature passed a bill addressing pregnancy accommodation, which the governor signed march 28. It takes effect May 10.
Management attorneys interviewed by Bloomberg BNA agree that providing reasonable pregnancy-related accommodations is in the best interest of employers.
“Employers are recognizing that it makes business sense and humanitarian sense to offer accommodations to pregnant workers,” Richard I. Greenberg of Jackson Lewis P.C. in New York said.
“Many state and local laws provide needed clarity for employers and pregnant women about what accommodations should be offered,” Liz Morris told Bloomberg BNA April 6. Morris is the deputy director of the WorkLife Law Center at the University of California, Hastings College of the Law.
In 1978, the Pregnancy Discrimination Act was added as an amendment to Title VII of the 1964 Civil Rights Act.
The PDA makes it unlawful for employers to discriminate against employees because of pregnancy, childbirth or related medical conditions. The act also provides that such employees “must be treated the same as other persons not so affected but similar in their ability or inability to work.”
The word “accommodation” doesn't appear in the PDA, Morris said, but the U.S. Supreme Court has interpreted the act to provide for accommodations in certain situations.
In Young v. United Parcel Service Inc., 135 S. Ct. 1338, 126 FEP Cases 765 (U.S. 2015), the Supreme Court said a worker could prove a PDA violation if the employer's policies placed a “significant burden” on pregnant workers without a “sufficiently strong justification” .
In June 2015, the Equal Employment Opportunity Commission revised its pregnancy-related enforcement guidance to reflect the holding in Young .
The EEOC also recognized that the 2008 amendments to the Americans with Disabilities Act expanded the meaning of disability, and now many disabilities that may be associated with pregnancy are covered, Morris said. “Things like severe morning sickness, gestational diabetes and migraines may be covered,” she said.
Prior to the amendments, the so-called “normal pregnancy doctrine” applied, which said that except in rare circumstances, pregnancy-related conditions are temporary and are not covered disabilities, Morris said. “So, this was a huge change that provided more protections for pregnant women.”
But navigating through the federal laws is “extremely confusing,” she said. “It's not clear to everyone that the PDA and ADA require accommodations for pregnant workers. And because of this confusion, pregnant women often don't get accommodations fast enough, even when they are covered,” Morris said.
This is why many states are requiring that employers offer accommodations that permit pregnant workers to stay on the job, Fink told Bloomberg BNA March 29.
“Many jurisdictions throughout the country are adopting pregnancy accommodation laws,” Greenberg of Jackson Lewis told Bloomberg BNA April 1.
But the range of accommodations provided under those state laws varies widely, attorneys said.
Some jurisdictions, such as Illinois, Delaware and the District of Columbia, provide enumerated lists of accommodations, but also include language that permits more possibilities, Fink said.
These accommodations include more frequent bathroom breaks, lactation breaks and seating, she said.
However, the Louisiana law is narrow and focuses on offering a temporary transfer as an accommodation, Fink said.
In Alaska and Texas, the laws only apply to public sector employees.
Covered California workers are entitled to an accommodation based on the advice of a health-care provider, Morris said. “But some states don’t require that. For example, in Minnesota, workers don’t need a note to take more frequent breaks or to request seating,” she said.
“States are not passing pregnancy accommodation laws in a vacuum,” Rachel Atterberry, a management-side attorney at Freeborn & Peters LLP in Chicago, said.
“Across the country, we are seeing employee protections expanded, from LGBT rights to paid family leave,” Atterberry told Bloomberg BNA April 6.
Greenberg said the New York state law that went into effect in January is part of a larger set of gender equity laws.
It's somewhat repetitive because pregnancy was already covered under state law, he said. “The new law just clarifies that employers must provide reasonable accommodations to pregnant workers,” Greenberg said.
New York City also has a law that requires accommodations, such as bathroom and rest breaks and assistance with manual labor.
Fink said each state law has its own nuances that are important for employers to understand.
Title VII and the ADA cover employers with 15 or more employees, but employers should keep in mind that many of the state laws cover companies with fewer workers, attorneys said.
In some states, including Illinois, New Jersey and North Dakota, pregnancy accommodation laws apply to all employers, regardless of size.
The Connecticut law applies to employers with three or more employees, but Louisiana's only covers employers with 25 or more employees.
The Illinois Human Rights Act was amended in January 2015 to add an affirmative obligation for employers of all sizes to provide pregnancy-related accommodations, Megan O’Malley of employee-side law firm O'Malley & Madden P.C. in Chicago said.
The law expressly applies to job applicants and part-time employees, not just full-time employees, O’Malley told Bloomberg BNA March 31.
Additionally, the Illinois law protects pregnant workers who may not qualify for leave under the Family and Medical Leave Act, she said.
The FMLA provides up to 12 weeks of unpaid leave for employees who have worked for their employer for at least 1,250 hours in the previous 12-month period. The federal law applies to employers with 50 or more employees in a 75-mile radius.
Pregnant employees who aren’t eligible for FMLA leave may receive time off and may be reinstated as an accommodation under the Illinois law, O’Malley said.
Almost all of the state laws have an undue hardship provision, stating that an employer must provide reasonable pregnancy-related accommodations unless it would impose an undue hardship on the business.
“California is the only state I know of that doesn’t include an undue hardship defense,” Morris said. “But the accommodation still has to be reasonable.”
Fink said the North Dakota law goes above and beyond most states' undue hardship language.
The North Dakota statute provides, “An employer is not required to provide an accommodation that would disrupt or interfere with the employer's normal business operations; threaten an individual's health or safety; contradict a business necessity of the employer; or impose an undue hardship on the employer.”
It takes the employer's size and type of business into consideration.
“The undue hardship language is built in for small businesses,” O'Malley said of the Illinois law. “The reality is, most pregnant women don't need an accommodation, and when they do it's usually a simple accommodation for a finite period of time.”
“Most accommodations wouldn't be noticed by employers unless the worker is on a factory line,” she said.
The concern from an employer perspective is that it’s not clear what is an undue burden, Atterberry said.
The Illinois law spells out certain required accommodations like longer or more frequent bathroom breaks and lactation breaks, but there are gray areas that could raise undue hardship issues, such as light duty, lifting restrictions and other things that get into the essential functions of the job, she said.
To the extent an employer is subject to multiple jurisdictions, it should have a policy that incorporates all applicable federal, state and local requirements, attorneys said.
“Employers shouldn’t make assumptions,” Atterberry said. “You still come across some employers that find out an employee is pregnant and take away her duties. Instead, they should have a back and forth conversation and let employees know they are a valued part of the organization.”
“Consistency is also important,” she said. “If an employer made an accommodation in the past for another employee, then it probably will have to make that accommodation for a pregnant worker.”
“Employers should be open to engaging in an interactive process with pregnant workers to figure out the best accommodation for the worker to maintain a healthy pregnancy and to continue to provide for her family during and after the pregnancy,” Fink said.
Greenberg said employers should think of their organization’s culture when developing policies. They should train managers and supervisors on those policies and make it known that pregnant workers should communicate with management to determine the best accommodation, he said.
“The more employees and employers can have an open dialogue and trust each other, the more employees will feel comfortable requesting an accommodation and the more employers will see that providing one isn't too disruptive,” O'Malley said.
Large entities are already offering accommodations, Greenberg said. “The trend now is to offer paid leave,” he said.
Fink said the National Partnership for Women & Families advocates for a national framework that would establish consistency in how pregnant workers are treated.
When employers are clear that they are required to accommodate pregnant workers, they are more likely to do so, Morris said.
“In states with laws on the books, it's been much easier to resolve these issues,” she said.
At the federal level, the proposed Pregnant Workers Fairness Act (H.R. 2654, S. 1512) would make reasonable accommodations available to pregnant workers under a standard similar to that in place under the ADA .
“The PWFA would send a clear message about pregnancy-related accommodations, so there would no longer be a need to quibble about the legal standard,” Morris said. “Clear laws on the books help employers avoid costly litigation for failing to accommodate.”
“Providing accommodations to pregnant women is not very difficult,” she added. “Many accommodations are low cost or cost free. They are always temporary, and they help retain valuable employees and increase company loyalty.”
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