Barring adverse congressional review, the District of Columbia’s Protecting Pregnant Workers Fairness Act of 2014 (PPWFA) will become effective on March 3, 2015. The new statute gives pregnant workers significantly broader protection than they have under current federal and District of Columbia law.
The PPWFA requires employers to provide reasonable accommodations for workers whose ability to perform the functions of their jobs is limited by pregnancy, childbirth, and related conditions, including breastfeeding. Reasonable accommodations may include more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment or seating, temporary light duty or modified work schedules, relocation of a work area, or provision of private non-bathroom space for expressing breast milk.
Employees cannot be required to accept accommodations if they can perform their job duties without accommodation, or if they have no known limitations related to pregnancy, childbirth, related medical condition, or breastfeeding. Likewise, employees cannot be forced to take leave if there is a reasonable accommodation that would allow them to continue working.
To identify reasonable accommodations, employers must engage in a good-faith and timely interactive process with employees requesting or otherwise needing a reasonable accommodation.
The PPWFA does not require employers to provide accommodations that would create an undue hardship, which is defined to mean “significant difficulty in the operation of the employer’s business or significant expense on the behalf of the employer when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation.”
Employers may require covered employees to provide medical certification of the advisability of a requested accommodation, so long as the certification requirement is no more stringent than that imposed on employees with other temporary impairments.
Written Notice of Rights
Beginning on March 3, 2015, employers must provide a written notice of PPWFA rights to new employees at the start of their employment. By July 1, 2015, employers must provide the notice to all existing employees. Additionally, an employee must be given the notice within 10 days after informing the employer of her pregnancy or other covered condition.
Employers must post and maintain a notice of rights in English and Spanish. The District of Columbia has not yet indicated whether it will issue a poster.
Unlike discrimination claims brought under the District of Columbia Human Rights Act, which are handled by the District of Columbia’s Office of Human Rights, pregnancy accommodation claims under PPWFA will be processed by the District of Columbia’s Department of Employment Services (DOES).
An employee who believes that her PPWFA rights have been violated may choose whether to bring a civil lawsuit or file an administrative complaint. If an employee files a pregnancy accommodation claim with DOES, the agency will conduct an investigation and attempt to resolve the complaint through conference or mediation. Failing settlement, DOES will determine whether probable cause exists to find that the employer has violated the statute. Upon a finding of probable cause, DOES will conduct a hearing to determine whether there has been a violation of the statute. An employee who is unsuccessful in the administrative forum may, after exhausting her administrative remedies, choose to file a civil lawsuit.
If an employee establishes a violation of the PPWFA through court or agency proceedings, she may recover back pay, attorneys’ fees, and costs and may be awarded reinstatement or other injunctive relief. Additionally, if the DOES finds a violation of the statute, it may impose civil fines and penalties on the employer, and may seek to suspend or revoke the employer’s business registration certificates, permits, and licenses in the District.
Statute of Limitations
The PPWFA does not include a statute of limitations, so pregnancy accommodation claims likely will be subject to the District of Columbia’s residual three-year statute of limitations for personal injury actions. Employers should note that this is significantly longer than the one-year limitations period applicable to discrimination claims under the District of Columbia Human Rights Act.
The PPWFA requires the DOES to issue regulations implementing the provisions of the statute, although this is unlikely to occur within the 60-day period mandated by the statute.