Reasonable Accommodation Requests
The accommodation process usually begins when an employee requests an accommodation from her employer.
Generally, an employer may require the employee to provide supporting medical documentation, such as a letter from her health-care provider indicating that a specific accommodation is needed. However, employers may not require such documentation from pregnant workers unless it is also required from nonpregnant employees who request accommodations. In other words, the same policies and procedures for reasonable accommodations must apply to pregnant and nonpregnant workers alike.
Once an employee requests a reasonable accommodation, the employer must engage in an “interactive process” to identify appropriate accommodations. The employer does not have to provide the requested accommodation, but the employer may only refuse to accommodate the employee if the accommodation would pose an “undue hardship” on the employer.
The U.S. Supreme Court has held that the PDA requires employers to treat “women affected by pregnancy . . . the same for all employment purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young v. UPS, 135 S. Ct. 1338, 1344 (2015). This means that when considering reasonable accommodations for a pregnant worker, the appropriate comparison is a nonpregnant worker who is similarly limited in his or her ability to work. For instance, an employee with a pregnancy-related lifting restriction should be treated the same as an employee with an arthritis-related lifting restriction.
Common Types of Pregnancy-Related Accommodations
Employees may request various types of pregnancy-related accommodations, such as more frequent breaks, temporary reassignment of job duties, or alteration of how job functions are performed. Courts and legislators have specifically addressed light duty, leave, and accommodations specific to nursing mothers.
Light duty was addressed in Young v. UPS. Many workers with pregnancy-related conditions request light duty as a reasonable accommodation. The U.S. Supreme Court addressed this issue in Young v. UPS, in which a pregnant driver, Young, requested light duty because she had a lifting restriction. 135 S. Ct. at 1344.
The U.S. District Court for the District of Maryland entered summary judgment in favor of the employer, UPS, and the Fourth Circuit affirmed. Young v. UPS, 784 F.3d 192 (4th Cir. Md. 2013).
The U.S. Supreme Court held that Young established a prima faciecase of discrimination by showing, under the McDonnell Douglasburden-shifting framework, that (1) “she belongs to the protected class,” (2) “she sought [an] accommodation,” (3) “the employer did not accommodate her,” and (4) “the employer . . . accommodate[d] others ‘similar in their ability or inability to work.’” 135 S. Ct. at 1354 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, Young established that she was pregnant and had asked for light duty as an accommodation. She further showed that her employer, UPS, denied her request but gave light-duty assignments to other employees who were not pregnant.
At that point, the burden shifted to UPS to provide a legitimate, nondiscriminatory reason for denying Young’s request. UPS claimed that it only provided light-duty assignments to workers who were injured on the job. The burden shifted back to Young to prove that UPS’s stated reason was pretextual. According to the district court, an employee can establish pretext by demonstrating that the employer’s stated reason is false or has changed or shifted over time, or by providing direct evidence of discrimination, such as a supervisor’s negative comments about the employee’s pregnancy.
The Supreme Court held that “it is not at all clear that [UPS] had any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing.” Id. at 1361. The Court vacated the Fourth Circuit’s decision and remanded the case for further proceedings.
What does this mean for companies that, like UPS, provide light duty only to employees who are injured on the job? Pregnant workers are not entitled to preferential treatment or to better treatment than other employees. In fact, the Court explicitly refused to adopt the Equal Employment Opportunity Commission’s position construing the PDA to entirely prohibit policies that provide light duty only to workers injured on the job. However, an employer that provides light duty only for on-the-job injuries must be prepared to prove that it has a legitimate, nondiscriminatory reason for not providing the same accommodation to pregnant employees. As the Court noted in Young, “a claim that it is more expensive or less convenient” to provide light duty to pregnant women is not a legitimate reason. Id. at 1354.
After Young, several circuits have considered the light-duty issue but haven’t provided additional clarity. In 2016, the Second Circuit vacated the dismissal of a pregnancy discrimination claim where the plaintiff’s employer failed to provide her a light-duty accommodation, stating that light-duty work was reserved for employees injured on the job. The court remanded the case for a new trial.
Despite a lack of clarity in the courts, legislation and regulation show a trend toward providing more protections for pregnant workers. Under the District of Columbia’s Protecting Pregnant Workers Fairness Act of 2014, employers are required to provide reasonable accommodations, including light duty, for employees whose ability to work is limited by pregnancy, childbirth, and related conditions, even if the employer does not accommodate similarly situated nonpregnant employees. The New York City Pregnant Workers Fairness Act also requires employers to provide light-duty accommodations to employees with pregnancy-related conditions. And California law prohibits employers who place temporarily disabled workers on light duty from extending the same accommodation to pregnant workers. Cal. Gov’t Code § 12945.
Leave issues have been addressed by courts and the FMLA. Most pregnant employees request leave as an accommodation at some point during their pregnancy or after childbirth. Courts have treated leave requests the same as requests for other accommodations under the PDA. In other words, if an employer allows temporarily disabled employees to take disability leave or leave without pay, it must allow pregnant workers to do the same.
Even if an employer does not offer disability leave or leave without pay, employees with pregnancy-related conditions are protected under the Family and Medical Leave Act (FMLA). The FMLA provides covered employees with up to 12 weeks of unpaid, job-protected leave per year. Employers must provide FMLA leave to allow covered employees to care for newborn, adopted, and foster children. In addition, some states, including New Jersey, California, and Rhode Island, have passed laws requiring certain employers to give new parents paid time off.
Employers are prohibited from requiring an employee to take leave because she is pregnant or after giving birth, as long as she can perform the essential functions of her job. Similarly, an employer cannot impose special policies and procedures for pregnancy-related leave, as opposed to nonpregnancy-related leave. For example, an employer can only require a doctor’s authorization to return a pregnant employee to work if the same is required for a nonpregnant employee to return to work.
Nursing accommodations have been addressed by the FLSA and state laws. The Fair Labor Standards Act (FLSA) now requires employers to provide a nursing employee with a private place to express breast milk, along with reasonable time to do so. According to the Department of Labor, employers must provide a private area, other than a bathroom, that is shielded and free from intrusion by coworkers or the public. Employers must provide these spaces for up to one year after the child’s birth. However, the break time need not be compensated.
The FLSA requirements do not preempt state laws that provide greater protections for employees. Some states require employers to give compensated break time or extend the requisite time for providing private spaces past one year after the child’s birth.
Other accommodations must receive equal protections. Some other common accommodations for pregnant employees might include more frequent breaks, temporary reassignment of job duties, or alteration in how job functions are performed. As discussed, all requests for pregnancy-related accommodations must be treated the same as requests from nonpregnant employees needing similar accommodations for other medical conditions.
State and Local Law
Although the PDA only applies to employers with 15 or more employees, many state and local laws often apply to employers with fewer than 15 employees. Futhermore, many of these state and local laws afford greater protections to pregnant workers than protections offered by the PDA.
Alan Lescht is a managing shareholder, Sara McDonough is a shareholder, and Krista Wallace is an associate attorney at Alan Lescht & Associates, P.C., an employment law firm located in Washington, D.C.