Two recent lawsuits filed by the Equal Employment Opportunity Commission (EEOC) serve as important reminders about consequences for violating the recently-enacted Pregnant Workers Fairness Act (PWFA).
In Alabama, the EEOC filed a lawsuit against Polaris Industries, alleging that Polaris refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments. The EEOC also claimed that Polaris required the employee to work mandatory overtime despite knowing that her physician had restricted her from working over 40 hours a week. Polaris refused to excuse the absences, instead threatening to terminate the employee if she received one more absence point. As a result, the employee resigned to avoid termination.
The second lawsuit is against a medical practice, alleging that it didn’t allow a medical assistant to sit, take breaks, or work part-time during her high-risk pregnancy as required by her physician. Instead, the practice forced her to take unpaid leave after her child’s birth and refused to guarantee that she’d be given breaks to express breastmilk. When the employee refused to return to work without guaranteed breaks, she was terminated.
The EEOC alleged that the conduct by these two employers violates the PWFA, a federal law that expands protections for pregnant and postpartum employees. With this in mind, let’s go over some quick reminders on this law and what you need to do to avoid employee-related claims.
Covered Employees
Under the PWFA, qualified applicants or employees with known limitations are protected.
Specifically, an employee who’s either (1) able to perform the essential functions of the job with or without a reasonable accommodation or (2) an employee who can’t perform the essential functions of the job with or without a reasonable accommodation, but her inability to do so is temporary, she can perform the functions in the near future, or her inability to perform could be reasonably accommodated.
Covered Employers
The PWFA applies to private employers and public-sector employers (i.e., government employers), so long as they have 15 or more employees. The law also applies to federal agencies, employment agencies, and labor organizations.
Covered Limitations
Under the PWFA, a limitation is any condition:
“related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
The definition includes uncomplicated pregnancies, miscarriage, postpartum depression, edema, lactation, and vaginal deliveries or cesarean sections.
Prohibitions
This is what you need to watch out for! The PWFA explicitly prohibits employers from:
- Not making reasonable accommodations for an employee related to childbirth, pregnancy, or related medical conditions, unless it would cause undue hardship;
- Requiring an employee to accept an accommodation that was imposed on her and not the result of an interactive process;
- Denying an employment opportunity to a qualified candidate or employee based on the company’s having to accommodate her;
- Requiring an employee to take paid or unpaid leave, if another reasonable accommodation is available; and
- Taking an adverse employment action against the employee because she asked for an accommodation.
Required Documentation
What’s a small business owner or HR manager to do?
First, you can request health-related information, but only in limited circumstances. If a discussion with the employee or applicant is sufficient to establish her need for a reasonable accommodation, that’s all you should do. Stated differently, you can request medical records and information only if it’s reasonably needed.
So what’s reasonable?
Here are the clues. Asking for documentation isn’t reasonable if:
- The limitation and corresponding need for an accommodation is obvious;
- You already knows about the limitation, and an adjustment due to the limitation is already in place;
- Your employee currently is pregnant and needs additional breaks or accommodations related to sitting or standing;
- Your employee is lactating and needs modifications to pump or nurse at work; or
- You wouldn’t ordinarily ask an employee for documentation in that situation.
If you do seek additional documentation, you’re limited to documentation that (1) confirms the employee’s condition, (2) confirms the condition is related to pregnancy or childbirth, or (3) describes the necessary adjustments or changes to accommodate her limitations.
New York Governs This Too!
As if we had to ask… yes, New York has its own workplace breastfeeding law that’s in effect. We’ll also have a paid prenatal leave law for every business – no matter how small – that goes into effect on January 1, 2025. In addition to complying with the PWFA, New York employers must ensure compliance with New York law as well.
The soon-to-be-effective prenatal leave law, which you can read more about here, will require employers to provide employees with 20 hours of paid prenatal leave.
The workplace breastfeeding law has been in effect for years, was amended in the last year or so, and requires employers to provide paid breaks to employees to express breast milk for up to three years following childbirth. Employers must designate a room or other location for expressing breast milk. The rooms have to be tricked out to some extent. Lots more information is provided in our previous blogs.
Compliance Requirements
We understand this is a lot of information. It’s hard enough to do business in New York, yet becoming more mindful about pregnant and postpartum employees is critical. Here are some quick reminders of what you should do to avoid any potential claims under federal or New York State law.
First, it often can be more protective for your company to be somewhat cautious about granting reasonable accommodations to employees. So long as the requested accommodations don’t cause an undue hardship, you should allow them. If a pregnant employee asks for sitting or standing accommodations, requests time off for pregnancy or childbirth-related reasons, or requests an area where she can express breastmilk in private, you should accommodate her. You are far less likely to end up with a lawsuit on your hands if you’re more flexible in providing basic accommodations to your pregnant employees.
Second, don’t take an adverse actions against an employee because she asked for a reasonable accommodation. What’s an adverse action? It’s something like a demotion, less-preferred hours or shifts, fewer hours, or termination. Stated differently, you can’t overlook her for a promotion or raise simply because she’s pregnant, has delivered a baby or miscarried and needed flexibility.
If you have an employee who’s requesting a reasonable accommodation for pregnancy or childbirth-related reasons, keep in mind that:
- you may only seek medical documentation if it’s reasonable to do so;
- you can’t ask for medical documentation if the need for accommodation is obvious;
- you can’t ask for medical documentation if your employee is pregnant and needs accommodations related to sitting and standing.
Even in circumstances where you can request documentation, it should be done only to confirm the condition and its relationship to pregnancy or childbirth or to confirm the recommended accommodations.
What’s Next?
We’ll keep an eye on the PWFA lawsuits and will provide updates as we learn them. We’ll also be watching the State Department of Labor to see if it issues regulations on the paid prenatal leave that becomes effective January 1, 2025.
If you have questions, need pregnancy and childbearing-related policies, or have other employment law questions, let us know.
Contact us on social here or here, email us at info@coppolalegal.com, or call us at 716.839.9700.
We’re here to help employers navigate the often-murky and changing employment laws.
