Recent EEOC Lawsuits Serve as a Reminder of Employer Obligations Regarding Pregnancy-Related Accommodation

Last week, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits alleging that employers violated the Pregnant Workers Fairness Act (PWFA).

One lawsuit, filed in Alabama, alleges that an off-road vehicle manufacturer violated the PWFA when it refused to provide a new employee with temporary accommodations that would allow her to take time off for doctors’ appointments and to work only 40 hours per week during her pregnancy. According to the EEOC’s complaint, the employer denied the employee’s requested accommodations indicating that (i) the employee would continue to accrue absences under the employer’s attendance policy for time off taken for appointments until she became eligible for paid leave time after her probationary period ended, and (ii) the employer could not accommodate the employee’s request not to work overtime during her pregnancy because overtime was an essential function of the employee’s job. The complaint further alleges that the employee requested a disability leave but was denied leave as the employee had not yet been employed for the required number of months. The complaint indicates that the employee ultimately resigned her employment rather than be terminated for taking time off to attend medical appointments or failing to work overtime hours.

The EEOC’s other lawsuit, filed in Oklahoma, alleges that an urology practice violated the PWFA by refusing to allow a pregnant employee to “periodically sit, take short breaks to eat or drink, and occasionally prop up her feet for a short time” in order to address swelling and pain in her feet, legs, and abdomen; refusing to allow the employee to temporarily work part time; and forcing the employee to take unpaid leave instead of providing temporary accommodations for her pregnancy, which would have allowed the employee to continue working. The complaint also alleges that the employer failed to ensure that the employee would be provided breaks for lactation following birth and terminated the employee’s employment when the employee was unable to return to work without assurances that she would receive the necessary lactation breaks.

These cases are the second and third enforcement actions filed by the EEOC in the last month. Although all of the cases are in the early stages, and it remains to be seen how they will be resolved by the courts, they serve as an important reminder to employers of the need to comply with their obligations under the PWFA. Specifically, the PWFA requires employers to provide reasonable accommodation for qualified employees or applicants with known limitations relating to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship (i.e., significant difficulty or expense). In addition, the PWFA prohibits employers from:

• requiring employees to accept a particular accommodation, unless it was the result of an interactive process;

• denying employment opportunities based on a qualified employee’s or applicant’s need for a reasonable accommodation;
• requiring an employee to take leave if another reasonable accommodation would allow the employee to keep working; or
• retaliating against an employee or applicant for requesting or using a reasonable accommodation or engaging in other protected activity under the PWFA.

Employers must also understand how these obligations under the PWFA differ from obligations under the Americans with Disabilities Act (ADA) or family and medical leave laws. For instance, employees are not required to establish the existence of a disability when requesting an accommodation under the PWFA. In circumstances where the need for a pregnancy-related accommodation is obvious, employees are generally not required to provide medical documentation in order to establish a need for a pregnancy-related accommodation and, in such cases, an employer’s request for medical documentation may be deemed unreasonable. Further, in circumstances where an employer is allowed to request medical documentation from an employee’s or applicant’s health care provider, the documentation must be limited to documentation that (i) confirms the physical or mental condition and its relation to pregnancy, childbirth, or a related medical condition, and (ii) describes the work adjustment that is needed due to the condition. Given these limitations, employers should ensure that their policies and accommodation request forms distinguish between requests for accommodation under the PWFA and requests for accommodation under the ADA. Finally, employers must be careful not to require or force pregnant employees to use unpaid or other available leave when the employee has not requested leave, and there are other reasonable accommodations (e.g., breaks, modification of work space or job duties, temporary job transfer, time off for medical appointments, etc.) that would allow the employee to continue working during the pregnancy.