If you’re pregnant and your employer has 15 or more employees, a new federal law may help you work longer. The Pregnant Workers Fairness Act (PWFA) gives the same protections to pregnant employees as those seeking reasonable accommodations for their disability or religious beliefs. The law was first introduced in 2012, passed into law ten years later, and is now in effect.

The PWFA adds protections to the Pregnancy Discrimination Act, which is more than 40 years old. That law contained many gaps and loopholes that the PWFA filled. Those with pregnancy-related conditions, like gestational diabetes or postpartum depression, are also covered by the law.

Congress intends that minor changes, like extra breaks for an employee with gestational diabetes to monitor their blood sugar levels or inject themselves with insulin, may help the mother and fetus stay healthy during the pregnancy. If the employee isn’t fired for taking extra breaks, she may remain employed longer during her pregnancy and earn more money before taking time off to give birth.

What is a Reasonable Accommodation for a Pregnant Employee?

Like the Americans with Disabilities Act (ADA), the PWFA is deliberately vague on what employers should do to accommodate employees, to encourage employees and employers to fill in the gaps.

Accommodations for workers could include:

• Providing chairs or stools for those who must stand for long periods
• More bathroom breaks
• Temporary reassignments to jobs with lighter duties or less exposure to toxic substances
• Flexible schedules
• Time off for prenatal checkups and postpartum care

Like the ADA, an accommodation proposed by an employee must be reasonable and not impose an undue burden on the employer. How this would play out in a particular workplace depends on the facts. What may be reasonable or an undue hardship for one employer may not be for another.

A closer call may be situations that result in a heavier burden on co-workers, especially for a smaller employer. Strenuous work can harm a pregnant worker. This could include third-shift work, lifting heavy objects, or exposure to toxins.  But employers are prohibited from guessing what pregnant workers need or presuming a disability where none exists.

If the pregnant employee does less of this work, non-pregnant workers may need to pick up the slack, making their jobs more dangerous or stressful. Depending on the circumstances, that may be an undue burden on the employer, who may consider an accommodation’s impact on its workforce when deciding if it’s an undue burden.

Is a Lack of Reasonable Accommodation a Problem for Pregnant Workers?

Twenty-three percent of mothers responding to a 2022 Bipartisan Policy Center poll stated they thought about quitting their jobs because of a lack of reasonable accommodations or fear of their employers’ discrimination/retaliatory reaction. Last fiscal year, 2,273 pregnant employees filed complaints with the federal agency enforcing anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC), claiming discrimination and retaliation. The EEOC estimates that at least a third of the new complaints are based on allegations that employers failed to reasonably accommodate their pregnancy or related conditions.

What Would be an Undue Burden for an Employer?

Title VII of the Civil Rights Act of 1964 bans employer discrimination based on a worker’s religious beliefs (or lack thereof) and states their beliefs and practices must be reasonably accommodated. If courts interprets the PWFA like Title VII, a US Supreme Court decision will help pregnant employees.

Before the recent federal ruling, an employer needed only show a minimal cost increase would be an undue burden and justify turning down a proposed accommodation. In a case involving a US Post Office employee who refused to work Sundays due to his religious practices and beliefs, the High Court decision states, according to Reuters, “We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantially increased costs in relation to the conduct of its particular business.”

In this case, co-workers and the employee’s supervisor were forced to work Sundays instead, putting additional work on the supervisor and resulting in complaints from co-workers. The case was dismissed early in the litigation process and was only ordered back to the trial court by a U.S. Supreme Court reversal.

How Should I Ask for a Reasonable Accommodation?

The employer need only make reasonable accommodations, so you’ll want to ask your treating physician what you can, can’t, and shouldn’t do at work. Your physician should write a letter spelling out the necessary changes.  Medical disclosures are kept to a reasonable minimum, for privacy reasons.

This should start a good faith, back-and-forth discussion with your employer if what you want isn’t acceptable. Both sides should be flexible. Neither side should take a “take it or leave it” position.

If the employer proposes something you don’t like, you may want to consider if it’s temporary and the employer is willing to reconsider later if it’s not meeting your needs. It’s easier to tell your boss a change doesn’t work after trying it instead of discussing it in the abstract and how it may not work. You may find their accommodation is good enough, or they may realize it’s not practical and your alternate request is worth attempting.

You should look at the situation from the employer’s perspective as you want them to look at yours. The change is temporary because your pregnancy will end in the future weeks or months, so this isn’t something you’ll need as long as you’re there. Your accommodation will also allow you to remain productive and continue to work during your pregnancy. It should be less of a burden for you to work with an accommodation than for you not to work at all.

Are You a Pregnant Worker?  Kingston Law Group Can Help You.

If so, the Kingston Law Group can help. Our employment discrimination attorneys protect the rights of employees and help them hold employers accountable for discriminatory behavior and policies of any type or stripe. If you have questions about accommodations for your pregnancy or a related health condition, email or call us at 609-683-7400 to arrange a consultation at our Mercer County law office. You will be glad you did!