KNOW YOUR RIGHTS: PREGNANCY DISCRIMINATION AND ACCOMMODATIONS

by Giovanna D’Orazio, of D’Orazio Peterson for Saratoga TODAY

As of June 27, 2023, we have a new law in effect on the national level: the Pregnant Workers Fairness Act (PWFA). The law provides a federal right to reasonable accommodations for limitations related to pregnancy, childbirth and pregnancy related medical conditions. The PWFA applies to public and private employers with 15 or more employees, Congress, Federal agencies, employment agencies, and labor organizations.

Most of us are familiar with accommodations for disabilities – if you can do your job with an accommodation (for example, light duty or an adjustment to your schedule) your employer is supposed to work with you to grant a reasonable accommodation. Reasonable doesn’t necessarily mean you get exactly what you ask for, but it’s something that will accommodate your disability and allow you to do your job without putting an undue burden on your employer.

Prior to the PWFA, there was a loophole where, if a limitation or medical condition related to your pregnancy did not rise to the level of a “disability” within the meaning of the law, you had no explicit legal right to an accommodation. This means that women could be fired for needing to carry a water bottle or not being able to lift heavy items. If an employer provided accommodations to some workers without disabilities, but not pregnant women, you could make a pregnancy discrimination argument (there was a successful Supreme Court decision on this involving UPS), but that is certainly not as straightforward as being entitled to an accommodation in the first place.

Some examples of accommodations in the PWFA guidance include: the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

In addition to the PWFA, we have several other protections for pregnant employees including:

•The federal Family and Medical Leave Act (FMLA) (which applies to larger 50+ employee employers and public employers) allows up to 12 weeks of job protected leave (unpaid) for serious health conditions, maternity and paternity leave, and prenatal appointments;

•Title VII of the Civil Rights Act (as amended by the Pregnancy Discrimination Act) prohibits discrimination on the basis of sex and pregnancy;

•The Americans with Disabilities Act which, if a pregnancy-related condition rises to the level of a “disability”, prohibits discrimination and requires reasonable accommodations;

•The New York State Human Rights Law prohibits discrimination on the basis of sex, pregnancy and disabilities, and requires accommodations of pregnancy related medical conditions and disabilities.

Whether and which laws apply to you depends on various factors including how many employees your employer has, whether you fall within the legal definitions of a disability or a serious health condition, and, in the case of the FMLA, how long and how often you’ve been working for your employer.

What if you need an accommodation or leave? Employers should have policies in their employee handbooks that lay out an appropriate request procedure. The FMLA has its own paperwork to be completed by a medical provider in connection with a request for leave. Typically, you would request this paperwork from Human Resources or your boss if you have a smaller employer without an HR department. While there can be circumstances where a need for an accommodation is so obvious the employer should start the process itself, the law encourages employees to ask for what they need. Whether an employer has met its obligations often depends on what it knew and when.

What can you do if you are denied an accommodation or if you are being harassed or discriminated against? Denial of an accommodation is what the law calls an “adverse employment action” – this means you have the right, at that point, to file an EEOC charge or a complaint at the NYS Division of Human Rights for failure to accommodate. An EEOC charge is required to preserve your right to file a lawsuit under certain federal laws. You are not required to file a complaint at the NYS Division of Human Rights to preserve your state law claims and could choose to immediately file a lawsuit instead. The FMLA also allows for immediate lawsuits. Internal complaints to your boss and/or Human Resources are also options to attempt to remedy discrimination or harassment, especially by a coworker.

As always, every situation is unique. Whether a requested accommodation is “reasonable” varies and is specific to your job duties and the needs of both the employer and employee. If you feel you are being discriminated against or that you have been denied an accommodation, you should consult your employee handbook and consider contacting an attorney before taking drastic action like resigning. The law encourages employees and employees to work together to figure this out before an end to the employment relationship.

This article is for informational purposes and should not be relied on as legal advice or in taking action at work.