United States: DC Employers Must Now Reasonably Accommodate Pregnant Employees

Last Updated: April 8 2015
Article by Douglas B. Mishkin and Sandi R. Pessin Boyd

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).

We will address this and other recently enacted employment laws in DC, Maryland, and Virginia in our May 6, 2015 breakfast seminar, Employment Law Update: DC, Maryland, and Virginia. Click here to register.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Turner Padget Graham and Laney P.A.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Turner Padget Graham and Laney P.A.
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions