By Dan Bryar, MNEA general counsel and chief human resource officer
In December 2022, two pieces of legislation became federal law: the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Act. Both Acts are presently enforceable and expand rights for pregnant and nursing workers. Missouri NEA supported both measures. However, for Missouri public school employees, the PUMP Act duplicates a guaranteed lactation accommodation right that the Missouri legislature enacted in 2021. The Missouri state law passed with the help of MNEA’s lobbying efforts. Since the law passed, school districts have adopted policies on employees’ rights to lactation accommodations.
Modeled after ADA
The Americans with Disabilities Act does not deem or presume that pregnancy is a covered disability entitling an individual to a workplace accommodation. Typically, symptoms or limitations associated with a normal pregnancy are not covered by the ADA and do not entitle an employee to workplace accommodations because the ADA only covers conditions that substantially limit a major life activity. Some pregnancy-related conditions, however, may rise to the level of an ADA “disability” entitling a worker to some reasonable accommodation (for example, gestational diabetes, preeclampsia or sciatica). The PWFA is modeled after the ADA although it is more specific and permissive for securing pregnancyrelated accommodations.
The PWFA permits workers to obtain reasonable work accommodations for “known limitations” related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The law applies to employers with 15 or more employees and encourages engaging in an interactive process to determine if reasonable accommodations are necessary for covered workers with eligible known limitations.
For accommodations that are obviously related to pregnancy and that the employer can adopt without undue hardship, there may not be any need to engage in any interactive process or seek medical certifications before granting the worker’s request. The law charges the Equal Employment Opportunity Commission with writing rules to implement the PWFA. The EEOC opines that accommodation requests that may be summarily granted by an employer without medical certification or interactive process might include when an obviously pregnant worker requests a different uniform size/gear, additional restroom breaks, ability to drink water throughout the day, or modifications to sitting/standing policies.
Further, a worker can be “qualified” under the PWFA to receive an accommodation even when their known limitation prohibits them from performing an essential job function for a “temporary period,” which could be resumed “in the near future,” and such limitation can be reasonably accommodated. The law is saying that if a pregnancy-related condition prohibits a worker from performing some essential job function, though an employer could reasonably excuse the performance of that function until after the pregnancy, then that could be a reasonable accommodation.
The PWFA uses the ADA definitions for determining whether a requested accommodation is a “reasonable accommodation” and whether it constitutes “undue hardship.” However, the relevant congressional record and present EEOC fact sheet on the PWFA lists some accommodations that may be available (i.e., reasonable) to a covered worker, including but not limited to:
- Allowing light duty or help with manual labor and lifting
- Temporarily transferring to a less physically demanding or safer position
- Providing additional, longer, or more flexible breaks to drink water, eat, rest or use the bathroom
- Changing food or drink policies to allow a worker to have a water bottle or food
- Changing equipment, devices, or workstation, such as providing a stool to sit on or adding a lock to a clean meeting room to turn it into a temporary lactation space
- Making existing facilities easier to use (for example, relocating a workstation closer to the restroom)
- Changing a uniform or dress code (for example, allowing an employee to wear maternity pants)
- Changing a work schedule (for example, having shorter work hours or a later start time to accommodate morning sickness)
- Providing breaks, private space (not in a bathroom), and other accommodations for lactation needs
- Providing flexible scheduling for prenatal or postnatal appointments
- Time off for bedrest, recovery from childbirth, mastitis
The law prohibits employers from terminating, discriminating, or retaliating against workers for needing, requesting, or using an accommodation. The law also prohibits employers from requiring a worker to accept the employer’s suggested accommodation or to take leave if there is another reasonable accommodation that permits the employee to continue working.
The employer is also not required to grant the worker’s desired accommodation if that accommodation would impose an undue hardship on the employer’s business operations. This frequently comes up, for instance, with workers insisting they be permitted to work remotely. For some employers, such accommodation may be reasonable. For educators providing in-class instruction, remote work may be a difficult request for administrators to approve.
Securing a PWFA accommodation requires that the worker communicate with the employer about their known limitation and request for accommodation.
The EEOC’s promulgated rules to carry out the PWFA are not final and are subject to change. If you need assistance in requesting a PWFA accommodation, reach out to your local leader, UniServ director, or school district human resource person.
Published in the fall 2023 issue of Something Better magazine.