"Everything grows rounder and wider and weirder, and I sit here in the middle of it all and wonder who in the world you will turn out to be."
- Carrie Fisher
Many female employees continue to work through the term of their pregnancies. Some of these women ultimately start to experience difficulty doing simple repetitive things
like standing and lifting. Typically, with only some simple or slight job modification to minimize such difficulties, many of these women could continue to work. But without some accommodation, they may be forced to quit their jobs or risk harm to themselves and their pregnancies.
In 2014, the West Virginia Legislature attempted to alleviate this "lose-lose" scenario for pregnant women by passing the Pregnant Workers' Fairness Act, which went into effect in the summer of 2015. The Act allows pregnant women to continue to work and maintain their income by explicitly requiring employers to accommodate pregnancy, childbirth, and related medical conditions in the same way they already accommodate temporary disabilities other than pregnancy. Under the Act, West Virginia employers must reasonably accommodate pregnant employees unless the accommodation would constitute an undue hardship.
The Act determines "reasonable accommodation" and "undue hardship" on a case-by-case basis primarily using guidelines from the Americans with Disabilities Act. The Act also requires that within two years, the West Virginia Human Rights Commission promulgate rules and regulations to further clarify the meaning of "reasonable accommodation." Until then, we'll have to wait and see how the courts interpret these important terms.
West Virginia courts have held that the West Virginia Human Rights Act does not require an employer to provide the employee with any specific accommodation requested, but does require the employer to offer an accommodation which allows the employee to perform the essential functions of his or her employment. Now, with the enactment of the PWFA, it is unlawful for an employer to require an employee (or job applicant) affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the employee (or applicant) chooses not to accept.
Some other important things to note about the PWFA is that the statute doesn't offer much guidance and clarification if an employee rejects the employer's proposed accommodations and both parties cannot agree on any other "reasonable" alternative. Also, the statute requires a statement from a medical professional suggesting necessary accommodations. Although the content of this statement is not conclusive in determining "reasonable" accommodations or even "undue hardship," it lends some direction as to what simply may facilitate compliance with the Act.
Employers are also prohibited by the PFA from retaliating against pregnant employees. In this situation, pregnant employee has the choice of either filing a claim with the West Virginia Human Rights Commission or litigating the matter in a court of law.
If you are currently pregnant and believe that your employer has not offered you reasonable accommodations under the West Virginia Pregnant Workers' Fairness Act, please call Amy Crossan, an expert in employment law, for a consultation at 304.523.8451.