Washington: Pregnant Employees Must Be Accommodated Regardless of Disability

Washington’s Health Starts Act (the “Act”) imposes new obligations on employers with pregnant employees. In a departure from the federal Americans with Disabilities Act (“ADA”), the Act requires employers to provide reasonable accommodations to pregnant employees regardless of whether or not the employee is disabled by their pregnancy. The Act provides a list of reasonable accommodations employers may need to provide, and includes other important restrictions on medical certification and the “undue hardship” exemption.

Accommodations for Pregnant Employees. Employers may be required to provide the following accommodations to pregnant employees:

1. Providing more frequent, longer, or flexible restroom breaks;

2. Modifying a no food or drink policy;

3. Providing seating, or allowing the employee to sit more frequently, if the job typically requires her to stand;

4. Limiting lifting weight to 17 pounds or less;

5. Restructuring a job, including part-time or modified work schedule, reassignment, or provision/modification of equipment, devices, or the workstation – however, employers are not required to create a new position, that would not otherwise exist, as an accommodation;

6. Transferring temporarily to a less strenuous or hazardous position;

7. Providing assistance with manual labor;

8. Allowing a flexible schedule for prenatal visits; and

9. Any further accommodations the employee may request, to be given reasonable consideration by the employer.

Of this list, items #1-4 are required to be provided to upon request by a pregnant employee. Employers may not require an employee to provide a doctor’s note or medical certification, nor can an employer claim undue hardship, in an attempt to avoid making these accommodations. For item #9, an employer must consider the employee’s request, and must take into account any documentation from the Department of Labor & Industries or other medical documentation provided by the employee.

Other Accommodation Laws Still Apply. In addition to the new accommodation requirements outlined above, employers must still obey the statewide Washington Law Against Discrimination (“WLAD”), which requires employers of eight or more workers to provide those with a known disability reasonable accommodations, and adhere to federal protections (e.g., the Americans with Disabilities Act requires employers of 15 or more workers to provide reasonable accommodations to those with a qualifying, pregnancy-related disability).

Other Requirements Under the Act. The Act specifically prohibits the employers from the following:

• Denying provision of accommodations #5-9 in the above list, unless the employer demonstrates an undue hardship as a result of providing the accommodation;

• Taking adverse action against an employee for requesting an accommodation;

• Denying employment opportunities because of a request for an accommodation; or

• Requiring employees to use leave benefits if another reasonable accommodation can be made instead.