Examining New Workplace Accommodation Laws on Pregnancy, Religion, and Disability

By LARA C. DE LEON AND JESSICA A. MAYNARD

Last year saw several changes to workplace accommodation laws, case law, and regulations. Three areas were front and center: Pregnancy, religion, and disability. Workplace laws constantly evolve, and claims challenging employers’ workplace accommodations (or lack thereof) are becoming increasingly common. Employers should carefully review and update their policies, procedures, forms, and training to ensure compliance.

Pregnancy

The Pregnant Workers Fairness Act (PWFA) became effective on June 27, 2023. It amends Title VII of the Civil Rights Act of 1964 to require employers covered by Title VII to provide reasonable accommodations for known physical and mental limitations related to pregnancy, childbirth, or a related medical condition, unless it creates an undue hardship.

Employers must engage in an interactive process with employees to assess whether a requested accommodation is reasonable.

The terms “qualified individual,” “reasonable accommodation,” “interactive process,” and “undue hardship” are borrowed from the Americans with Disabilities Act (ADA), but they are defined differently under the PWFA, which can add to the complexity of compliance.

The Equal Employment Opportunity Commission has proposed regulations to implement the PWFA. The Equal Employment Opportunity Commission (EEOC) received over 100,000 comments and planned to issue final regulations in December 2023, but no final regulations have been issued as of this publication. Under proposed regulations, the EEOC provided a “non-exhaustive list” of conditions to be covered if related to pregnancy. The list includes:

• Guidance on an expanded definition of “Qualified Individual.” Employees temporarily unable to perform the “essential functions” of their job for a period not to exceed 40 weeks are included.

• A requirement that employers consider participation in a preexisting light duty program.

• A list of “Predictable Assessments:” These are accommodations that will almost always be found to be reasonable and do not need documentation, including extra breaks, sitting/standing, and having water on hand.

Additionally, the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act) became effective in December 2022. It expands lactation accommodation provisions in the 2010 Nursing Mothers Act, and requires employers covered by the Fair Labor Standards Act to provide reasonable breaks and a private space for pumping. The following are clarified as part of the Act:

• Break time is allowed every time the employee needs to pump. Non-exempt employee’s break time is unpaid unless the employee is not completely relieved of duty.

• Exempt employees are legally entitled to a lactation accommodation and must be paid their entire weekly salary, regardless of any pumping breaks.

• Employers have ten days to correct compliance failures.

• Damages are available for noncompliance.

To ensure complete compliance employers should check state laws, which may provide additional requirements. Be sure to have a compliance plan to mitigate risks, because lactation discrimination can result in claims of pregnancy or gender discrimination.

Religion

In 2023, the U.S. Supreme Court changed the legal standard required by employers to show an undue hardship created by a requested accommodation based on an employee’s sincerely held religious belief. The Court ruled that employers must show that a religious accommodation would cause an undue hardship that substantially increased costs related to the conduct of its operation.

This is a significant departure from previous Court precedent, which indicated an employer could reject an accommodation if it created a de minimis burden (a “very small or trifling” hardship).

In Groff v. DeJoy, an Evangelical Christian U.S. Postal Service employee requested not to work on Sundays. USPS denied the accommodation, saying it was not reasonable and created an undue hardship by diminishing employee morale and creating scheduling issues. The employee was disciplined for refusing to deliver packages on Sundays, and ultimately resigned.

USPS denied the accommodation under the “more than de minimis” standard, but the Court’s ruling established the new “substantial burden” standard.

The new standard is heightened but falls somewhere between the “de minimis” standard and the ADA’s undue hardship standard. Continued litigation will clarify this standard further.

Employers can anticipate an influx of religious accommodation requests. Additionally, the holding brings into question the analysis employers used in granting and denying accommodation requests during the COVID-19 pandemic. The EEOC is still acting on these changes, so employers may still be impacted by decisions made during the pandemic under the previous standard.

Disability

Lawsuits continued to address disability accommodations in the workplace in 2023. The EEOC brought lawsuits challenging workplace accommodations and disability discrimination. These lawsuits dealt with issues like termination due to lifting restrictions or requesting to periodically sit, and failure to provide communications accommodations.

Court rulings regarding telework as a disability accommodation increased from the pre-pandemic period (2017–2019) to the post-pandemic period (2021–2023). So did the percentage of rulings that were pro-employee. This shift indicates that employers need to carefully consider work-from-home accommodations.

Lara C. de Leon is an experienced trial lawyer and client advocate at Constangy, Brooks, Smith & Prophete. She represents companies in all aspects of employment law.

Jessica A. Maynard’s practice at Constangy, Brooks, Smith & Prophete includes crafting and implementing policies that enhance workplace culture. She also provides litigation support and representation.