By Karla Grossenbacher and  Martha Gates

Seyfarth Synopsis: The Equal Employment Opportunity Commission filed a flurry of lawsuits last month alleging violations of federal law concerning pregnancy and related conditions. These cases highlight a new “Bermuda Triangle” of laws that employers must navigate when responding to pregnancy-related requests for accommodation.

The Pregnant Workers Fairness Act added more protections for pregnant workers—employees or applicants who have known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions—beyond the ones available under existing federal law.

Prior to the PWFA’s passage last year, pregnant workers were protected only by the Pregnancy Discrimination Act, which essentially requires that pregnant workers be treated the same as similarly situated non-pregnant workers, and the Americans with Disabilities Act, which requires employers to accommodate physical and mental conditions that rise to the level of a disability absent undue hardship. Many pregnancy-related conditions, however, don’t constitute disabilities under the ADA.

All three laws now apply whenever an employer is considering a pregnant worker’s accommodation request, and the cases filed by the EEOC in September and October, just months after its final rule issued in June, provide a compliance roadmap for employers reviewing such requests. In short, employers must recognize that pregnancy-related requests for accommodation must be handled differently from others.

Forced leave is an accommodation of last resort. The PWFA, unlike the ADA, expressly includes a provision that prohibits employers from forcing a pregnant worker who is requesting accommodation to take leave when there are other reasonable accommodations available that would allow the employee to keep working.

The EEOC alleged in cases filed against Wabash National Corp. and Urologic Specialists of Oklahoma that the employers forced the pregnant workers to take unpaid leave as an accommodation despite their requests that would allow them to continue working. In the Wabash case, the employee had requested to perform only those duties of her assembler job that didn’t involve bending over for an extended period of time or to be placed on light duty. In the Urologic Specialists case, the employee requested the ability to sit and take breaks.

Employers should engage in the interactive process. Although not alleged as a separate violation of law, the EEOC said in the cases it filed against Wabash and Kurt Bluemel Inc. that the employers didn’t engage in the interactive process with the employee before denying the accommodation. Employers should have meaningful communications with employees requesting accommodations for pregnancy-related conditions or disabilities to properly evaluate the requests, and document these efforts.

Employers need to consider modifying existing policies. The EEOC’s filings are also a warning against rigid policies that don’t account for pregnancy-related needs. In its case against Polaris Industries Inc., for example, the EEOC alleged the company violated the PWFA by failing to accommodate an employee who requested time off for medical appointments and to be relieved of the need to perform mandatory overtime.

Instead of modifying its policies, the company allegedly kept issuing attendance points against the employee when she went to medical appointments and refused to exempt her from mandatory overtime requirements. The EEOC alleged in the Polaris case that its human resources specialist told the employee that “her doctor could give her pregnancy restrictions, but the doctor did not know Defendant’s policies.”

Ability to perform essential functions isn’t required. Unlike the ADA, the PWFA requires accommodation for pregnant workers even if they temporarily can’t perform essential functions of their job. In a number of its recent lawsuits, including the ones against Urologic and Polaris, the EEOC reiterates this rule.

Conduct can give rise to multiple legal violations. Employers must keep top of mind that denying an accommodation request from a pregnant worker can give rise to claims under the related three laws. In its filing against ABC Phones of North Carolina Inc. doing business as Victra, the EEOC alleged that Victra violated both the ADA and the PDA when it withdrew a job offer after a newly hired pregnant worker requested to reschedule a training session so she could go to an urgent ultrasound appointment.

The company allegedly told the employee to reapply when she could “100% attend” any scheduled training. The EEOC said Victra violated the ADA by failing to reschedule the training session to accommodate the pregnant worker and by regarding the pregnant worker as having a disability based on her disclosure of her pregnancy-related complications.

The EEOC also asserted that Victra violated the PDA because Victra had allowed non-pregnant new hires to adjust or reschedule training dates. And in its cases against Polaris and Urologic, the agency asserted a constructive discharge claim under the PWFA against the company because the employee resigned when her accommodations weren’t granted.

Develop separate processes for pregnancy-related accommodations. In the case against Wabash, the EEOC alleged that the company’s use of an existing ADA form in connection with evaluating a pregnant worker’s accommodation request violated the law by making disability-related inquiries that were unnecessary to evaluate her request under the PWFA.

Employers using such forms as part of their process should develop separate forms for use in evaluating accommodation requests from pregnant workers. They must note that use of such forms can’t be mandated, and that requesting documentation to support an accommodation request under the PWFA isn’t allowed in several instances. Employers should also make sure their human resources personnel and management team receive training so they understand the rules handling accommodation requests from pregnant workers.

Astute employers will take notice of the EEOC’s recent filings on accommodations of pregnant workers and learn from them. Compliance with the new trio of laws will only become more important as enforcement continues and caselaw develops in this area.