Tuesday, August 15, 2023

Not all reasonable accommodation standards are created equally

Consider this example, and then let's talk.

Lydia works as a cellar person in a brewery. The essential functions of her job include the ability to lift up to 40 lbs. and to move kegs that weigh as much as 160 lbs. She delivers a note from her doctor that says, "No lifting or moving more than 10 pounds."

What are this employer's obligations to offer her a reasonable accommodation for her lifting and moving restrictions? It depends on the medical reason.

If the restrictions are in place because of a physical impairment, the ADA might require the employer, as a reasonable accommodation to alter how or when Lydia performs the essential lifting function. What the ADA does not require, however, is the elimination of essential functions.

If, however, the restrictions are in place because of Lydia's pregnancy or a related medical condition, the employer's reasonable accommodation obligations under the Pregnant Workers Fairness Act are actually broader.

The PWFA's definition of a "qualified employee" includes those employees who are unable perform an essential function for a "temporary period," will be able to perform an essential function in the "near future," and can be reasonably accommodated in the interim. 

While the PWFA is silent on the meaning of "temporary" and "near future," the EEOC's recently published proposed regulations fill that definitional gap. The proposed rule defines "temporary" as the need to suspend one or more essential functions is that lasts "for a limited time, [is] not permanent, and may extend beyond 'in the near future' (generally within 40 weeks)." 

This definition means that if a pregnant worker can return to her full job duties at some point in the near future without restrictions, she is a "qualified employee" under the PWFA and an employer should consider modifying or removing those conflicting essential functions to reasonably accommodate her pregnancy related limitations, and must offer that accommodation if no other lesser reasonable accommodations are available (and it otherwise does not impose an undue hardship).

Thus, the brewery Lydia works for should remove the 40 lbs./160 lbs. essential functions to accommodate her pregnancy restrictions (unless it poses an undue hardship or there are lesser accommodations available).

This accommodation is a stark departure from that which employers are accustomed under ADA, and will require a different type of thinking in cases of pregnant employees. If you haven’t yet read the PWFA’s proposed regulations, you should take a look. You might be surprised just how many legal protections pregnant workers now have.