This past year has brought with it expanded employment protections for new and expectant working mothers. These protections, in the form of two federal laws, alter the landscape for how employers can consider the needs of expectant and new mothers in the workplace.

The most significant change is the the Pregnant Worker Fairness Act (“PWFA”), which creates new reasonable accommodation requirements for most employers when considering pregnancy-related limitations of their employees and applicants. Employers covered under the PWFA (which include employers subject to Title VII and the ADA, so virtually all) now must provide “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless [the employer] can demonstrate that the accommodation would pose an undue hardship on the operation [of its business].” Critically, the PWFA prohibits covered employers from requiring that an employee accept any accommodation that was not derived through an “interactive process,” meaning employers cannot establish a uniform accommodation for pregnant employees, nor can they require the employee to take a paid or unpaid leave, if another reasonable accommodation can be provided. In addition, the PWFA does not replace existing state or federal laws providing pregnancy-related employment protections, so employers must continue to comply with federal laws such as the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”), as well as any applicable state or local law. 

Employers have been dealing with reasonable accommodations for years, but there are significant differences between how the ADA and PWFA operate:

• The employer’s reasonable accommodation obligation under the PWFA extends to “known limitations” of a qualified employee. This only requires the limitation be “communicated to the employer,” including by a simple conversation with a supervisor or HR that the employee (a) has a limitation, and (b) needs an adjustment or change at work. Note, the limitation need not rise to the level of an ADA-covered disability. 
• A “qualified employee” under the PWFA, unlike the ADA, includes an employee who cannot perform the essential functions of their job where the inability is temporary, the employee can perform the essential job function sometime “in the near future;” and the inability to perform the essential function can be reasonably accommodated.
• The PWFA appears to require more than the ADA in the interactive process, as the PWFA prohibits employers from placing an employee on leave unless and until it is determined the employer can provide no other effective reasonable accommodation that would not impose an undue hardship.
• Furthermore, the PWFA removes the direct threat defense that is available under the ADA, i.e., that the employer can refuse to provide an accommodation where there is a direct threat to the health or safety of the employee or others in the workplace that cannot be eliminated through reasonable accommodation. But safety concerns could be a factor in whether the accommodation is an undue hardship.   
• Significantly, the Equal Employment Opportunity Commission has identified in a proposed rule four job modifications it has concluded will “virtually always be reasonable accommodations that do not impose undue hardship.” These include: (1) allowing employees to carry or drink water as needed during the workday; (2) providing additional restroom breaks; (3) allowing employees to sit if their work involves standing or stand if their work involves sitting; and (4) providing employees with breaks as needed to eat and drink. While employers may not be precluded altogether from claiming these modifications would impose an undue hardship, there is clear presumption under the proposed rule that these accommodations should not pose an undue hardship, and employers will bear the burden of proving otherwise.   
• Under the proposed rule, employers are limited to requiring documentation that is “reasonable under the circumstances” and often will have to accept the employee’s self-attestation that she is pregnant, especially if she requests one of the above accommodations.

Second, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) became law shortly before the new year and expanded the scope of employers who must provide reasonable break time to lactating workers to express milk for up to one year following the birth of the employee’s child. While these breaks need not be paid under the PUMP Act, remember that under the Fair Labor Standards Act, breaks of less than 20 minutes must be paid and these breaks will count as hours worked (i.e., must be paid) if the employee “is not completely relieved from duty during the entirety of such break.” In addition, employees are entitled to a place to pump at work, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Smaller employers (those with fewer than 50 employees) may be excused of these requirements if they would impose an undue hardship on the employer by causing the employer significant difficulty or expense – but remember, undue burden is a fairly high standard, so talk to a member of the Spilman team before relying on this exception.