DC Employers Must Now Reasonably Accommodate Pregnant Employees

In an interesting coincidence of a new District of Columbia law and a new Supreme Court decision, DC’s new Protecting Pregnant Workers Fairness Act of 2014 (the Act) answers a question for DC employers that the Supreme Court asks in its recent decision in Young v. United Parcel Service, Inc.

In Young, the issue was whether the employer, United Parcel Service (UPS), violated the federal Pregnancy Discrimination Act (PDA) in denying an accommodation to a pregnant employee. The PDA requires employers to treat pregnancy as it treats other short-term disabilities – nothing more, nothing less. UPS argued that it accommodated short-term disabilities that resulted from on-the-job (but not off-the-job) activity, and thus had a legitimate, non-discriminatory reason for not accommodating Ms. Young’s pregnancy. The Supreme Court vacated the lower court’s grant of summary judgment in favor of UPS and remanded the case for the Fourth Circuit to address: “[W]hy, when the employer accommodated so many, could it not accommodate pregnant workers as well?”

DC’s new pregnancy accommodation Act leaves no room for such a question. Unlike the federal PDA, the DC Act requires employers to provide reasonable accommodations for an employee whose ability to perform her job is limited by pregnancy, childbirth, a related medical condition, or breastfeeding. Unlike the PDA, the Act requires DC employers to accommodate pregnancy regardless of how those employers treat other short-term disabilities. The Act also identifies examples of accommodations that DC employers are required to provide, and prohibits employers from retaliating against employees who assert their rights under the Act.

DC joins a growing number of jurisdictions imposing such a requirement. Maryland, California, Connecticut, Delaware, Hawaii, New Jersey, Illinois, Louisiana, Minnesota, West Virginia, New York City, and Philadelphia enacted similar laws. For more information about Maryland, see our May 31, 2013 Alert, New Maryland Law Requiring Accommodations for Pregnancy Related Disabilities.

Last July, the EEOC also issued guidance on pregnancy discrimination under federal law. However, it should be noted that in Young, the Supreme Court rejected the EEOC’s guidance that “an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” The Court held that on this point the EEOC Guidance failed to provide support for this interpretation, which the Court found to be inconsistent the EEOC’s previous positions.

Covered Employers

The Act, like the DC Human Rights Act, applies to all DC employers who employ at least one employee. Thus, it covers small employers (between one and twenty employees) who are not otherwise covered under the federal PDA or Title VII, which generally prohibits discrimination based on sex.

Requirements and Prohibitions

Specifically, the Act requires an employer to provide a “reasonable accommodation” for an employee’s known limitations related to pregnancy, childbirth, a related medical condition, or breastfeeding, unless the employer can show that the accommodation would be an undue hardship. An employer can require the employee to submit a certificate from the employee’s healthcare provider concerning the medical need for a reasonable accommodation, but only to the same extent employees are required to do so for other temporary disabilities.

The law provides a non-exclusive list of possible “reasonable accommodations”:

• More frequent or longer breaks;
• Time off to recover from childbirth;
• The acquisition or modification of equipment or seating;
• The temporary transfer to a less strenuous or hazardous position or other job restructuring, such as providing light duty or a modified work schedule;
• Having the employee refrain from heavy lifting;
• Relocating the employee’s work area; or
• Providing private non-bathroom space for expressing breast milk.

An employer is prohibited from taking an adverse action against an employee who requests or uses a reasonable accommodation. For example, an employer is prohibited from:

• Failing to reinstate an employee to her original job or to an equivalent position with equivalent pay, accumulated seniority and retirement, benefits, and other applicable service credits once she no longer needs a reasonable accommodation;
• Denying an employee or job applicant employment opportunities because of the need for an accommodation;
• Requiring an employee to accept an accommodation that is unnecessary to perform her job;
• Requiring an employee to accept an accommodation that she chooses not to accept, if the employee does not have a known limitation related to pregnancy, childbirth, related medical conditions, or breastfeeding; or
• Requiring an employee to take leave instead of providing a reasonable accommodation.

Posting and Notice Requirements

Employers are required to post a notice of rights under the Act in English and Spanish in a conspicuous place accessible to employees. In addition, employers are also required to provide written notice to:

• All newly hired employees upon commencement of employment;
• All existing employees by July 1, 2015 (within 120 days of the Act’s effective date); and
• All employees who notify the employer of a pregnancy or other condition covered under the Act within 10 days of the notification.

Enforcement and Penalties

Under the Act, employees can file either an administrative action with the Department of Employment Services (DOES) or a civil action in court. The Act permits employees who prevail under either proceeding to recover back pay for lost wages, be reinstated, or other injunctive relief, as well as reasonable attorney’s fees and costs of enforcement, with interest.

If an employee chooses to file an administrative claim with the DOES, and the DOES determines that a violation has occurred, the DOES may assess a penalty of up to $500 per day for each affected employee. Additionally, an employer who fails to post the notice of rights is subject to a civil penalty of up to $50 per day, not to exceed $250 (unless the ongoing violation is willful). The DOES may enforce compliance by suing or by revoking or suspending an employer’s registration certificates, permits, or licenses until the violation is remedied (except where such revocation or suspension is prohibited by another law). An employer may request a hearing prior to a revocation or suspension by the DOES.

Employers who willfully violate the Act are subject to a civil penalty of $1,000 for the first offense, $1,500 for the second offense, and $2,000 for each subsequent offense.

Next Steps for DC Employers

The law requires the DOES to develop instruction courses and to conduct ongoing public education efforts to inform employers about this new law’s requirements. As of the writing of this alert, nothing has been scheduled, and there is no information on the DOES website. However, to ensure compliance with the law, DC employers should start taking the following steps immediately:

• Prepare and post the required notice in English and Spanish in a conspicuous place easily accessible to all employees;
• Prepare and distribute a notice to all current employees by July 1, 2015;
• Review and revise employment policies and handbooks to notify employees about available accommodations for employees affected by pregnancy, childbirth, a related medical condition, or breastfeeding;
• Review and revise EEOC policies to ensure they include information about discrimination due to a need for an accommodation due to pregnancy, childbirth, a related medical condition, or breastfeeding; and

Review and revise the requirement for employees to provide a health care certificate from a health care provider concerning the need for a reasonable accommodation due to pregnancy (if such a certificate is required for other temporary disabilities).