Article contributed by Valerie Bluth, Ellenoff Grossman & Schole LLP
Your employee has just advised they are pregnant, and they need some help getting their job done. What do you do? According to the recently-implemented federal Pregnant Workers Fairness Act (“PWFA”), the answer is simple: “Sure, how can we help you?”
Employers across the country have long been required to provide reasonable accommodations to pregnant employees with pregnancy-related limitations to assist them in performing the essential functions of their jobs.
The PWFA provides a mechanism for these employees to receive workplace accommodations.
The conventional wisdom has been to request medical certification of the need for accommodations, whether in the form of job modifications, extra breaks, time off or otherwise.
The stakes have now changed in light of final regulations issued by the U.S. Equal Employment Opportunity Commission (EEOC) on April 15, 2024, which are set to take effect on June 18, 2024 (the “PWFA Regulations”).
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Restrictions on Requesting Supporting Documentation
Primarily, the PWFA Regulations center around restrictions on requesting paperwork from the pregnant employee to support the need for accommodation.
The PWFA Regulations indicate that documentation is generally not required to support an accommodation, and employers may only do so when it is reasonable under the circumstances to determine whether the employee needs an adjustment or change at work due to a limitation caused by their pregnancy, childbirth, or related medical conditions (a “Limitation”).
Per the PWFA Regulations, it is unreasonable for employers to ask for documentation from pregnant workers:
- When the Limitation and the adjustment or change at work needed due to the Limitation are obvious, and the employee confirms such need.
- If the employee seeks any of the following due to their pregnancy: (1) carrying or keeping water near for drinking, as needed; (2) taking additional restroom breaks, as needed; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting, as needed; and (4) taking breaks to eat and drink;
- If the company’s policies already allow other workers to get the accommodation without paperwork; and
- For accommodations related to lactation and pumping at work.
Essentially, the PWFA Regulations instruct employers to ask themselves “do I really need documentation to evaluate this accommodation request?”
If so, employers may request reasonable documentation, meaning the minimum documentation sufficient to confirm the Limitation and describe the change or adjustment at work needed due to the Limitation. Merely stating the accommodation is necessary is sufficient.
This is a marked departure from the reasonable accommodation procedures under the Americans with Disabilities Act and ancillary state and local laws, where employers are permitted to seek medical documentation that shows both that an employee has a disability and that specific accommodations are medically warranted.
New York City employers should already be familiar with these restrictions – under the city’s version of the PWFA, employers may not request documentation from a physician to support the need for accommodation unless the employee is requesting time off from work or to work remotely.
Providing Accommodations
Once an employer is on notice that a pregnant employee needs accommodation – with or without documentation – the employer must then continue the interactive process.
The employer should promptly provide an effective accommodation – meaning, one that addresses the employee’s Limitations – as long as it does not cause undue hardship.
In a hospitality setting, this can be a tall order, as most front-of-house and back-of-house tasks are physical in nature, and can be strenuous at times.
If more than one effective reasonable accommodation exists, the employer has the ultimate discretion to choose the accommodation it provides, though the PWFA Regulations indicate the employee’s preference should be given primary consideration.
It is important to remember that an accommodation may be inconvenient, but that does not mean it causes undue hardship.
For example, if a pregnant server asks for a schedule change because they tend to be unwell in the morning, it would be in the employer’s purview to decide whether to schedule the employee for an afternoon shift or for an evening shift.
Similarly, if a pregnant dishwasher is limited from lifting more than a specified weight, the employer has the discretion to reassign that duty to others or temporarily transfer the employee to a different position with the same pay and benefits that addresses the Limitation.
Employers may not require the employee to take leave instead of modifying their job duties, schedule or work environment, whether paid or unpaid.
Next Steps
It is imperative that hospitality employers provide PWFA training to employees who handle accommodation requests. Managers and non-managers alike should be trained to avoid any harassment or retaliation against pregnant employees who request accommodation.
Employers should also consider planning ahead for pregnancy-related job modifications, as an unnecessary delay in providing accommodations may result in a violation of the PWFA. This can be true even if the reasonable accommodation is eventually provided.
Finally, remember that the PWFA does not stop once the employee gives birth – accommodations for childbirth, recovery and lactation are also required, and also with little supporting documentation.
Valerie Bluth is a Partner in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients in employment-related matters, with a particular focus in the hospitality industry.
Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, especially with respect to pay practices and employment policies, and to devise practical solutions for any employment problems that might arise. Ms. Bluth can be reached at (212) 370-1300 or vbluth@egsllp.com.
