D.C. employers are now required to accommodate pregnant workers.

The District of Columbia’s Protecting Pregnant Workers Fairness Act of 2014 (the Act) took effect on March 3.[1] The new law requires D.C. employers to accommodate employees who request reasonable accommodations due to pregnancy, childbirth, related medical conditions, or breastfeeding, unless the accommodation would impose an undue hardship on the employers. The Act also prohibits discrimination against employees for requesting or using a reasonable accommodation and prohibits employers from denying employment opportunities to employees or applicants if the denial is based on an employer’s need to make reasonable accommodation to known limitations related to pregnancy, childbirth, related medical conditions, or breastfeeding. The Act places the District of Columbia among a growing number of jurisdictions—including California,[2] Maryland,[3] New Jersey,[4] Illinois,[5] New York City,[6] and Philadelphia[7]—that require employers to make workplace accommodations for employee conditions related to pregnancy or childbirth, regardless of whether those employees are “disabled,” and is consistent with the guidance issued by the U.S. Equal Employment Opportunity Commission regarding pregnancy discrimination enforcement.[8]

The Act provides for an administrative complaint process and a private right of action. If the D.C. Department of Employment Services (DOES) determines after a hearing that an employer has violated the Act, DOES may order back pay, reinstatement or other affirmative relief, attorney fees and costs, and a penalty of up to $500 per day for each employee against whom the violation occurred. In addition, willful violations may be subject to civil penalties that range from $1,000 to $2,000 for each violation, and the Act includes a $50 per-day penalty for failing to comply with the Act’s notice requirements.

Accommodation Obligations

Pursuant to the Act, employers must engage in a good faith interactive process with employees who request or need an accommodation. Employers may request a medical certification from employees’ healthcare providers, to the extent that the employers request a medical certification for other temporary disabilities. Examples of reasonable accommodations include more frequent or longer breaks, time off to recover from childbirth, seating, temporary lifting restrictions, temporary transfer to a less strenuous or hazardous position (including light duty or a modified work schedule), relocation, and access to a private, nonbathroom space for expressing breast milk.[9] The Act prohibits an employer from imposing an accommodation unless an employee asks for one or otherwise has a known limitation or from requiring an employee to accept an accommodation that is not necessary for the employee to perform her duties. The Act also specifically prohibits an employer from requiring an employee to take leave if a reasonable accommodation can be provided.

As with other accommodation laws, it is an employer’s burden to provide undue hardship under the Act. The Act defines undue hardship as an action that requires significant difficulty or significant expense considered in relation to the size of the business, its financial resources, and the nature and structure of its operations.

Nondiscrimination Provisions

Employers are prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation with regard to the employee’s conditions or privileges of employment, including a failure to reinstate an employee to her original or an equivalent position when the need for accommodation ceases. The Act also prohibits employers from denying employment opportunities to employees or applicants if the denial is based on an employer’s need to make reasonable accommodation to known limitations related to pregnancy, childbirth, related medical conditions, or breastfeeding.

Posting Requirements

Employers must post a notice of rights in English and Spanish. In addition, employers must provide written notice of an employee’s rights under the Act to new employees upon commencement of employment, to existing employees within 120 days of the Act’s effective date, and within 10 days to employees who notify their employer of a pregnancy or other covered condition. Employers must also provide a translation of employees’ rights under the Act to any employees who do not speak English or Spanish. At this point, it is not clear if DOES will publish a template notice.

Enforcement Provisions

Under the Act, employees may elect to pursue an administrative charge before DOES or a civil action in court. Employees may recover back pay for lost wages, reinstatement or injunctive relief, and reasonable attorney fees and costs. Penalties for violating the Act range from $1,000 for the first willful offense to $2,000 for each third or subsequent offense, as well as penalties of up to $500 per day for each employee against whom the violation occurred, if DOES determines after a hearing that an employer has violated any provisions of the Act. In addition, an employer who fails to post and provide the required notice may be assessed a civil penalty of up to $50 per day, not to exceed $250, unless the violation is willful.

Interpretive Guidance

Within 60 days of the Act’s effective date, the D.C. Mayor Muriel Bowser will issue rules to implement the Act’s provisions that will include the procedures by which an employer may establish undue hardship.

Steps D.C. Employers Should Take Now

To comply with this new law, D.C. employers should do the following:

  • Review and revise accommodation policies to include provisions for accommodations based on pregnancy, childbirth, related medical conditions, and breastfeeding
  • Review and revise equal employment opportunity policies to include discrimination based on pregnancy, childbirth, related medical conditions, and breastfeeding
  • Ensure that handbooks and/or new hire paperwork include the required notice to employees regarding the Act
  • Post a notice of employees’ rights under the Act (a template notice has not yet been provided)
  • Prepare to distribute a notice to existing employees within 120 days of the Act’s effective date, and identify a process to distribute a notice to employees who notify employers of their pregnancy or other covered condition, within 10 days of the notification
  • Ensure that reasonable accommodation procedures include steps to identify and accommodate requests under the Act