HR Guide to Pregnancy and Reasonable Accommodation

It’s not easy being an expectant mother and working full-time. Having to take time off for prenatal care, physical changes, and fatigue can all affect a pregnant woman’s ability to work. Still, many work far into their pregnancies with great success thanks to the help and understanding of their employers.

While many companies try to make expectant mothers more comfortable at work, pregnancy discrimination is still rampant in the modern workplace. In fact, 23% of mothers have contemplated leaving their employment due to lack of reasonable accommodation or fear of discrimination during pregnancy.

While the Pregnancy Discrimination Act (PDA), Pregnant Workers Fairness Act (PWFA), and a few other federal laws protect pregnant women in the workplace, there’s still some gray area around how far businesses have to go to offer compliant benefits that support reasonable accommodation for pregnancy. Here’s your guide to navigating pregnancy accommodation in the workplace.

The Pregnancy Discrimination Act

The PDA prohibits employers with more than 15 employees from discriminating against women based on a past, current, or future pregnancy or medical condition caused by pregnancy or childbirth. 

Employers cannot refuse to hire, demote, terminate, or retaliate against an individual due to pregnancy, even if the employer believes the decision is in the employee’s best interest. 

Instead, employers must provide pregnant employees with the same reasonable accommodations, such as leave benefits or modified job responsibilities, that are extended to employees “similar in ability or inability to work.” However, if a company does not provide special accommodations for other workers, they are not obliged to do so for pregnant employees.

Pregnant Workers Fairness Act

The PWFA protects any employee who works for a covered employer—private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations—from discrimination or retaliation based on a need for reasonable accommodation (i.e. limitations related to pregnancy, childbirth, or related medical conditions).

Ultimately, the PWFA was created to protect employees from gaps in the PDA, ADA, and FMLA guidelines. For example, unlike FMLA, PWFA does not have a wait period or hours worked requirements for eligibility.

Unpaid Leave

While many pregnant employees choose to work far into their pregnancy, they may be entitled to unpaid leave should they become unable to work. If employers allow other injured or sick employees to take an unpaid leave of absence, they are legally required to offer an equivalent pregnant accommodation. 

While employers are not permitted to force employees to go on leave (or deny them from returning early), they can require a physician’s note to confirm their inability to work.

Examples of Reasonable Accommodation for Pregnant Workers

In addition to providing leave, employers must provide reasonable accommodation for pregnancy. “Reasonable accommodation” typically involves making necessary adjustments in the workplace to ensure that pregnant employees can continue to perform their job duties safely and effectively. Protected by law, an employer who is requested to provide reasonable accommodation must:

• Proactively engage in communication with the requesting employee, such as asking questions about their needs, understanding the accommodation requested, and considering their feedback.
• Provide an accommodation that is comparable to the request made.

Additionally, employers have the right to request medical documentation from the employee’s healthcare provider to confirm the need for reasonable accommodation.

Some examples of reasonable accommodation for pregnancy include: 

• Permitting an employee to sit during their shift
• Reducing physical responsibilities, otherwise known as “light duty,” such as limiting heavy lifting and/or temporarily reassigning them to other tasks
• Allowing an employee to telecommute
• Providing lactation areas for breastfeeding and pumping mothers
• Adjusting schedules to accommodate doctor appointments and medical leave

Is Pregnancy a Disability?

While pregnancy is not considered a disability, certain pregnancy-induced health conditions may be covered under the Americans With Disabilities Act (ADA). In 2008, the ADA Amendments Act (ADAAA) broadened the definition of “disability” to include an individual who:

• Has a physical or mental condition that substantially limits at least one major life activity, like walking, talking, seeing, hearing, etc.
• Has a history of disability, like cancer in remission
• Is regarded as having a disability

Some pregnancy-related health issues covered under the ADA include carpal tunnel syndrome, gestational diabetes, sciatica, and preeclampsia. If a  pregnancy-related health issue is covered, the affected individual is entitled to reasonable accommodation for pregnancy, such as job modification or leave, under the ADA. An exception is made only if a pregnancy accommodation would cause a company “undue hardship,” or significant difficulty or financial burden.

High-Risk Pregnancy

High-risk pregnancy refers to a pregnant mother and her fetus facing higher-than-normal odds of experiencing complications. 

There are many degrees of what is considered high-risk pregnancy, but some risks include pre-existing medical conditions (i.e. cancer, diabetes, autoimmune diseases), fetal risks (i.e. birth defects, genetic or chromosomal abnormalities), and pregnancy-related factors, such as history of pregnancy loss, preeclampsia, placental complications, and carrying multiples (i.e. twins, triplets). 

High-risk pregnancies are likely to require reasonable accommodation.

Pregnancy and the Family and Medical Leave Act (FMLA)

If a pregnant employee has worked at a company with over 50 employees for at least a year, they may be entitled to up to 12 weeks of unpaid, job-protected leave under the Family and Medical Leave Act (FMLA).

FMLA leave covers a work absence due to prenatal care, incapacity due to pregnancy, and to treat pregnancy-related health issues following the birth of a child. As long as an employee gives their employer reasonable notice of an absence, they may take leave intermittently, slowly over time to reduce hours, or all at once.

Breastfeeding Laws at Work

Expressing breastmilk, or pumping, at work is protected under a few different laws. Lactation is viewed as a medical condition related to pregnancy under the PDA, so employers cannot discriminate against an employee expressing breast milk during the workday.

Additionally, nursing mothers are also protected under the Fair Labor Standards Act (FLSA), which requires employers to allow workers reasonable break time during their shift to express breast milk for up to one year after giving birth. 

Employers are not required to compensate employees for this time, but they must provide breastfeeding employees with a private place, other than a bathroom, where they may express breast milk. Should these requirements give a small business undue hardship, employers with less than 50 employees may be excused from these obligations.

State Pregnancy Laws

Because there’s still some gray area around federal laws applying to pregnant workers, many states have passed their own anti-discrimination laws. Over 31 states, Washington D.C., and four cities have their own laws requiring employers to accommodate pregnant women in the workplace. 

More than half of all U.S. states have their own laws protecting breastfeeding workers. New York City passed its own law requiring private lactation rooms to be outfitted with a refrigerator, counter or table, and electrical outlet. Make sure you stay current with local, state, and federal laws so your company can support employees and remain compliant.

Even with all these laws, there’s still uncertainty around how far employers have to go to provide reasonable accommodation for pregnancy. Aside from informing employees of their options, employers should aspire to go above and beyond the legal requirements to help pregnant employees continue to work. This way, your company can avoid costly litigation and, more importantly, show employees that you care.

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Don’t have any policies on reasonable accommodations for pregnancy or temporarily disabled employees? Download our Guide to Company Policies for tips on how to draft your own and build a better work environment.