Reasonable Accommodations: Enhancing Rights for Pregnant Workers

In the past, many employees experiencing pregnancy-related complications were forced to take leave days because of the limited availability of reasonable accommodations. That is because pregnancy itself is not considered a disability under the Americans with Disabilities Act (ADA). The good news is that a law recently went into effect that should help cover some additional pregnancy-related conditions that would not normally be covered by the ADA.

The Pregnant Workers Fairness Act (PWFA) went into effect in 2023, and the associated regulations went into effect this past June. The PWFA requires a covered employer to provide reasonable accommodations for known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee unless doing so would be an undue hardship on the employer. It also prohibits an employer from retaliating against an employee who requests accommodations under the law.

Some of the language used in the PWFA is similar to that of the ADA, but many of the terms are given broader definitions to cover more pregnancy-related conditions. Whereas the ADA requires that the individual still be able to perform the essential functions of their job (with or without accommodations) to be considered “qualified” for purposes of the law, the PWFA states that the ability to perform the essential functions of the job may not be necessary for the employee to be considered “qualified.” This exemption applies when certain criteria are met: when the inability to perform the essential function is temporary, when the function could be performed “in the near future,” or when the inability to perform the function can be accommodated reasonably.

The PWFA also does not require that the employee’s limitation meet the ADA’s definition of a disability to be eligible for accommodation. The ADA defines a “known limitation” as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability.” This means that a limitation could be relatively minor or something that only occurs on occasion (e.g., morning sickness).

For purposes of the PWFA, a reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a known limitation related to pregnancy, childbirth, or related medical conditions to perform the essential functions of the job or to enjoy benefits and privileges of employment equal to those enjoyed by similarly situated employees without known limitations. The PWFA also provides that a reasonable accommodation can include the temporary suspension of one or more of the essential functions of the employee’s job. The new regulations provide some examples of accommodations that will “virtually always” be considered reasonable and not an undue hardship for the employer. These include allowing the employee to carry and drink water, have more bathroom breaks, sit or stand, or eat or drink as needed.

Please note that accommodations related to expressing milk are generally covered by the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which requires an employer to provide a reasonable amount of break time for a covered employee to express breast milk and a place to do so other than a bathroom that is protected from view and intrusion. However, the new regulations for the PWFA also discuss possible accommodations related to pumping that may be available under the PWFA, the PUMP Act, or both. Examples include “ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; that it is a place other than a bathroom; and that it is shielded from view and free from intrusion.”

In addition, the PWFA regulations mention the possibility that nursing a child (as opposed to pumping) could be a reasonable accommodation in very limited situations. Specifically, the regulations states that nursing during work hours could be a reasonable accommodation when “the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity.”

This is just a brief overview of rights and protections afforded to employees under the PWFA. The ATPE Member Legal Services Department can assist eligible members with specific questions about their rights under the PWFA, as well as with resolving problems they may encounter when requesting accommodations.