Reasonable Accommodation for Pregnant Employee – Next Steps

By: Attorneys Dean R. Dietrich and Davis Runde

The Equal Employment Opportunity Commission (“EEOC”) has issued its final
regulations for implementation of the Pregnant Workers Fairness Act. This new law
requires each covered employer to provide a “reasonable accommodation” to a qualified
employee or applicant known to have limitations relating to or arising out of pregnancy,
childbirth, or other related medical conditions. This law took effect in June 2023, but the
new regulations became effective June 18, 2024. The EEOC is now accepting
complaints under this law if an employee feels they have not been properly
accommodated because of their medical condition related to pregnancy or childbirth.

Many would say this law does not really change the obligations to accommodate
pregnancy or childbirth. In Wisconsin, the interpretation of the Wisconsin Fair
Employment Act would certainly suggest that employers must be accommodating for an
employee during pregnancy or after childbirth.

One of the important aspects of the new EEOC regulations is the requirement that an
employer may be required to transfer some of the essential functions of an employee’s
position for a limited period of time to provide a reasonable accommodation to an
employee for pregnancy or childbirth. This requirement is much different than the
“reasonable accommodation” requirements under the Americans with Disabilities Act
relating to discrimination on the basis of disability. There is no requirement under the
Americans with Disabilities Act to transfer or reassign essential functions of a position
when considering a reasonable accommodation due to a disabling condition. The duty
to accommodate an employee due to pregnancy or childbirth under the Pregnant
Workers Fairness Act is much broader and, while it may exist only for a temporary
period, it opens the door to a far more expansive duty to accommodate the working
conditions of an employee.

It is true in Wisconsin that the transfer of essential functions of a position may be a
reasonable accommodation for a disabled employee under the Wisconsin Fair
Employment Act, but such decision is subject to the “undue hardship” protection. The
same “undue hardship” protection exists under the Pregnant Workers Fairness Act
although it is hard to understand how that would be applied when dealing with
temporary accommodation. Employers must be very careful in how they look at
accommodations in working conditions for an employee during pregnancy or
immediately after childbirth.

As always, employers should feel free to reach out with any questions or concerns
regarding how the Pregnant Workers Fairness Act may apply in their workplace.