Employers in Washington state are now subject to another layer of laws around pregnancy accommodations for their employees. Most notable are the four accommodations that are per se - or automatically considered "reasonable."
What are the new Pregnancy Accommodations Laws?
Beginning in 2017, Washington enacted an additional layer of protection for employees regarding pregnancy and work-related accommodations. Prior to the 2017 legislation, employers were required to make reasonable accommodations for pregnant employees so long as the accommodations did not place an “undue hardship” on the employer. The new legislation keeps the previous framework but imposes four accommodations which are per se—i.e. automatically considered “reasonable.
Providing more frequent, longer, or flexible restroom breaks;
Modifying a no food or drink policy;
Providing seating or allowing the employee to sit more frequently if her job requires her to stand; and
Limits on lifting over seventeen pounds.
An employer cannot claim an “undue hardship” for any of these four accommodations.
The lifting limit accommodation can be particularly difficult for employers as many jobs cannot be modified to such a low lifting threshold. Unfortunately for employers, there is no provision in the law that addresses this problem. Additionally, the legislation makes it an unfair practice to “fail or refuse” to make these accommodations. Thus, the law could be interpreted to mean that an employer must proactively provide these accommodations without being requested to do so by the employee.
The only other significant change imposed by the law is that it discourages an employer from requiring an employee to take leave if the employer can provide a reasonable accommodation that prevents the need for leave. Thus, an employer should not require an employee to take leave from work unless first requested by the employee or unless there is no other feasible option.
Keep in Mind:
With the exception of the per se reasonable accommodations set forth above, whether an accommodation constitutes an undue hardship on an employer is a highly fact-specific inquiry requiring case-by-case determination. This makes it impossible for an employer to refuse an accommodation with 100% certainty that they will not be liable for failure to provide reasonable accommodation.
The best course of action for an employer is to engage in an interactive process with a pregnant employee to negotiate appropriate accommodations that are both feasible and reasonable. Avoiding lines in the sand, ultimatums or a hard “no” is generally the safest strategy. Even then, there is no “silver-bullet” for navigating the ever-increasing legal hurdles which come along with addressing pregnancy in the employment context. When in doubt, consult with an attorney or human resources to develop a plan for addressing this thorny legal issue.
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