On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service. This case addressed the extent to which employers must accommodate pregnant workers under the Pregnancy Discrimination Act (PDA). The Court held that an employer's accommodations policy must not "impose a significant burden on pregnant workers" unless the employer has legitimate and non-discriminatory reasons for implementation of the policy that are "sufficiently strong to justify the burden." (Read our prior alert on this case.) Lower courts have just begun to grapple with how to apply this standard in a meaningful way. In addition to remaining compliant with the PDA, employers need to navigate a web of overlapping laws addressing pregnancy-related and postpartum discrimination and accommodation issues. This article provides a road map for this area.

An overview of the current legal landscape is as follows:

• Anti-Discrimination (PDA and State Anti-Discrimination Laws)
  Pregnancy can form the basis for a sex-based discrimination claim under the PDA and state anti-discrimination laws. In the wake of Young, employers should generally offer pregnant employees the same accommodations that a non-pregnant employee would be offered with the same light-duty limitations. Exceptions to this rule will be limited and should be discussed with counsel prior to implementation.
• Disability (ADA and State Disability Discrimination Laws)
  Pregnancy itself is not a disability, but pregnancy-related medical conditions may be a disability requiring accommodation under the federal Americans with Disabilities Act (ADA) or applicable state disability discrimination laws.
• State and Local Pregnancy Accommodations Laws
  Some state and local governments have enacted legislation that requires accommodations for pregnant employees regardless of whether they qualify as "disabled" due to a pregnancy-related medical condition. Employers may be required to give some accommodations automatically. For example, the Minnesota's Women's Economic Security Act requires that employers provide the following accommodations to pregnant employees with no showing of medical necessity required and regardless of any claimed employer burden–restroom breaks, seating, and limits on lifting.
  Other state and local laws explicitly list these accommodations as reasonable—such that they are essentially per se required (e.g., Delaware, D.C., Illinois, Nebraska, New Jersey, New York, Rhode Island). Still other jurisdictions simply provide that employers must make reasonable accommodations for pregnancy and related conditions (e.g., California, Connecticut, Hawaii, Louisiana, Maryland, North Dakota and West Virginia). Each state or local law can vary based on employer size, physician-note requirements, undue-burden defenses, and other variables.
• Nursing Accommodations (Federal Law)
  Employers may not engage in adverse employment actions on the basis of an employee's lactation needs under the PDA, but the PDA does not require special accommodations. Employers covered by the Fair Labor Standards Act (FLSA) (i.e., engaged in interstate commerce), however, they may be required to offer reasonable unpaid break time to nursing mothers to allow them to express milk in a designated place other than a bathroom. Employers with less than 50 employees may be exempt if the accommodations would cause an undue hardship. Employers should consult with counsel to determine if the undue-hardship exception can be claimed. The accommodations must be provided for up to one year after the child's birth. These nursing accommodations apply only to nonexempt employees under the FLSA, though exempt employees may have the right to accommodations in some states (see below).
• Nursing Accommodations (State Law)
  Twenty-seven states have passed legislation akin to those imposed by the FLSA that mandates reasonable accommodations for employees who are nursing. Each state has its own requirements for how many employees an employer must have to be subject to these mandatory accommodations. This includes: Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. In Minnesota, for example, all employers (with one or more employees) must extend reasonable unpaid break time in a private location that is not a bathroom for expressing milk (with a limited exception if the employer can show that doing so will disrupt operations).
• Proposed Legislation
  The U.S. Senate reintroduced legislation this past summer to require reasonable accommodations for pregnant employees similar to what the ADA requires for disabilities. The Pregnant Workers Fairness Act would require employers to treat pregnancy itself, and not just pregnancy-related medical conditions, as a disability under the ADA.

Employer Compliance Considerations 

• A postpartum condition may be "pregnancy-related."
  Many courts consider postpartum conditions as pregnancy-related, such that they fall under the protections of the PDA. The EEOC has issued guidance, citing to the legislative history of the PDA, that a woman has "the right . . . to be financially and legally protected before, during, and after her pregnancy." Further, courts will often assess a postpartum condition under the standard ADA framework to determine if it qualifies as a disability (significantly affecting major life functions). A postpartum condition, such as postpartum depression, can under some circumstances meet this test.
• A condition may be protected even before it is diagnosed.
  In Hicks v. City of Tuscaloosa, 2015 WL 6123209 (N.D. Ala. Oct. 19, 2015), an employer reassigned an employee to a different position and commented that since her return from maternity leave, she had "changed" and displayed a "lack of initiative and motivation." Despite the fact that the employee was not diagnosed with postpartum depression until after the reassignment, the Court found that the employer's actions were discriminatory, under the PDA.
• When may an employer require physician documentation?
  • Disability
    An employer may require physician documentation for accommodation requests for pregnancy-related medical conditions under the ADA and applicable state disability law.  
  • Automatic Pregnancy-Related Accommodations
    An employer may not require physician documentation under some state and local laws (e.g., New York, Minnesota, and Philadelphia) for the following pregnancy-related accommodations: frequent restroom, food, and water breaks; seating; and limits on lifting more than 20 pounds.  
  • Nursing
    An employer generally may not require physician documentation under the FLSA and applicable state nursing laws for an employee's lactation needs. Similar to the FLSA, some states require accommodations up to one year after the birth of the child; thus, unless the employer is covered by a more inclusive state law, it may be possible to request a physician note after one year has passed. Employers should consult with counsel prior to demanding physician documentation for nursing accommodations.

What Accommodations Should an Employer Consider for a Pregnant or Postpartum Employee?

A pregnant or postpartum employee's rights and an employer's obligations can vary by state and by a number of other factors as discussed above. Certainly an employer should adhere to the requirements of the applicable state in which it resides. Employers with operations across multiple states may wish to maintain policies that are easy to administer and provide uniform rights to all employees across all states. Employers may wish to consider the best-practice tips outlined below in order to comply with narrower state laws (and the FLSA) as well to avoid treating a pregnant employee differently, which would give rise to discrimination claims under the PDA.

• Accommodate upon request from a pregnant employee (without physician documentation) more frequent restroom, food, and water breaks; seating; and limits on lifting more than 20 pounds.
• Engage in an individualized assessment with each requesting employee to determine if there are temporary, alternative job-duty arrangements that do not pose an undue hardship (e.g., temporary reassignment, reserved parking close to worksite, ergonomic chairs, workstation relocation away from heat/chemicals, scheduling adjustments, dress-code modifications). If an employer would accommodate the restriction for a non-pregnant injured or disabled employee, it should do the same for a pregnant employee.
• Provide a designated, clean area that is not a bathroom for nursing employees to express breast milk. The area should be in close proximity to the employee's workplace, should be private, and should include access to an electrical outlet.

Common Mistakes to Avoid

It is well known that an employer cannot discriminate against pregnant employees. Employers get into trouble, though, for seemingly innocuous conduct that is not always immediately recognized as unlawful. Employers should avoid the following common mistakes.

• Do Not Discuss Family Planning
  Employers should refrain from inquiring about or commenting on an employee's family-planning decisions. This includes interview questions prior to employment; innocent comments by supervisors that may appear to be a part of casual conversation (e.g., "So, will you be having children soon now that you're married?"); and any comments or actions based on an employee's decision to undergo fertility treatments, to use contraception, or to have an abortion.
• "Protecting" Pregnant Employees
  If a pregnant employee is capable of safely performing her job, an employer is not permitted to unilaterally reassign her job duties (or place her on leave) even if the motivation to do so is innocent (paternalistic). Pregnant women should be given the opportunity to work if they are willing and safely able to do so.
• Think Before You Speak…About Pregnancy
  Comments about an employee's physical appearance while pregnant or about the burdens associated with an employee's upcoming maternity leave can be easily construed as intolerance or negativity toward the employee because of her pregnancy (e.g., "It seems like you just returned from your last maternity leave.")
• Train All Supervisors
  Appropriate and well-trained responses from Human Resources can sometimes be too late when a supervisor or manager has already done the damage by making comments or denying an accommodations request. All supervisors should be trained on discrimination and accommodation requirements.