The Law: How to accommodate pregnant employees

In any work environment, it is likely that at some point an employee or co-worker will become pregnant.

The Pregnant Workers Fairness Act, effective June 2023, protects covered employees and job applicants who need “reasonable” accommodations because of pregnancy, childbirth, or conditions related to pregnancy and childbirth.

Under the law, pregnant workers should be able to make requests for reasonable accommodations, such as closer parking, uniforms in their size, and additional rest time.

The pregnant workers law is similar in many ways to the Americans with Disabilities Act. It does not require an employer to provide an accommodation if doing so would bring it “undue hardship” or, in other words, it would come at great difficulty or expense to the employer.

But the law is also different from the ADA.

Unlike the ADA, where the employee has to be able to do the essential functions of their job or they no longer qualify for accommodations, the Pregnant Workers Fairness Act says that workers do not always have to be able to perform an essential function temporarily because of their pregnancy. It is expected they will be able to resume those duties in the near future.

The Equal Employment Opportunity Commission’s proposed rules define the “near future,” or when workers will be able to perform essential functions of their job after being temporarily unable to do so, as generally up to 40 weeks. This does not mean workers will always have 40 weeks but that needing 40 weeks doesn’t disqualify an employee for the accommodations.

The regulations also say that if there are multiple options for effective accommodations, the employer should favor the worker’s preferred accommodation.

Finally, the regulations say that putting the employee on leave should be a last resort accommodation.

Case law

Several cases also provide important standards for employers to follow when accommodating pregnant employees.

In 2015, the U.S. Supreme Court ruled in Young v. UPS that pregnant employees can make a valid claim for discrimination by showing their employer denied a request for an accommodation when the employer has accommodated other employees who are “similar in their ability or inability to work.”

Iowa courts also have applied Iowa law preventing discrimination in employment due to pregnancy to require that employers provide reasonable accommodations to pregnant employees unless it would pose an undue hardship.

Black Hawk case

Failing to accommodate pregnant employees can be costly.

For example, a Black Hawk County jury in Iowa in 2018 awarded a pregnant employee of Party City Corp. $736, 000, consisting of $80,000 in back wages and pain and suffering and $656,000 in punitive damages).

The plaintiff, Kellie Norris, claimed after she told her supervisor she was pregnant, she was criticized by her supervisor and received five disciplinary actions within six months for issues such as tardiness related to her pregnancy. Other managers who were not pregnant were apparently not disciplined for similar conduct.

Norris also claimed she requested a schedule change to begin work later in the day due to pregnancy issues, but her supervisor failed to accommodate her.

She asserted that her supervisor reportedly told her she needed to schedule prenatal appointments on her days off and allegedly became angry if she did not. Norris also claimed her supervisor allegedly refused to send her paperwork to apply for maternity leave, became angry when she was able to obtain it from human resources, and reportedly tried to get assistant managers to provide negative information on her.

Norris argued that the employer supposedly advertised and hired her replacement approximately three months before her termination.

The employer denied liability and contended the plaintiff was disciplined for repeated violations of store policy, including failing store loss prevention audits, attendance violations, and failing to take the deposit to the bank each day.

As noted, the jury believed the employee’s version of the situation.

What’s reasonable?

So, how does an employer accommodate a pregnant employee (or one with a pregnancy-related disability)?

The best way for an employer to handle a request for accommodation from a pregnant worker is the same way it handles any disability request under the Americans with Disabilities Act: Engage in the interactive process with the employee.

An employer should ask, “What would I do if the employee had a back injury or needed chemotherapy treatments?”

What accommodations are reasonable for a pregnant worker?

According to the U.S. Department of Labor:

Employers should not accept generic requests like “the patient can’t be on her feet or lift heavy objects.” Get specific guidance about accommodations from the employee and her doctor — “patient must be off her feet at least four hours a day” or “patient cannot lift anything over 10 pounds.”

Remember that the interactive process is ongoing.

Once the accommodation is implemented, employers should continuously monitor the situation and make adjustments as needed, involving both the employee and her physician.

Finally, while the employer has a duty to engage in the interactive process, it still has the right to choose which accommodation best meets its organization’s needs or poses an undue burden.

Keep in mind that such accommodations may have bottom line benefits to employers such as increased employee recruitment, retention and productivity.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com