Thursday, April 16, 2015

Minnesota Employers Face Greater Obligations to Accommodate Pregnant Workers than Employers in Most Other States

April 2015
By: James B. Sherman, Esq.

Employers across America awaited the U.S. Supreme Court’s decision in a case that was expected to resolve the extent of their obligations to accommodate pregnant employees.  The case, Young v. UPS, involved a worker’s claim that her employer unlawfully refused to accommodate her pregnancy-related lifting restrictions while providing light-duty work to other employees who had similar restrictions, unrelated to pregnancy.  Many view the Court’s decision in this case as a win for pregnant employees because the Court reversed a lower court’s dismissal of Young’s lawsuit. However, the decision also benefitted employers by taking issue with controversial new guidelines issued by the Equal Employment Opportunity Commission (EEOC) while this case was pending.  Specifically, those guidelines stated among other things that the Pregnancy Discrimination Act (PDA) requires employers to offer light-duty work normally reserved solely for employees on workers compensation, as an accommodation to pregnant workers. The Court, in Young, found no support for essentially giving pregnant workers preferential or what the Court called, “most favored nations” treatment over disabled and other employees.  The EEOC has since acknowledged the need to revise its pregnancy guidelines, potentially freeing employers of the “favored nations” obligation. However, this case dealt only with federal law; it did not address state laws such as Minnesota’s recently enacted Women’s Economic Security Act of 2014 (WESA).  As a result, while this decision may have freed most employers of the EEOC’s more controversial and short-lived accommodation mandates for pregnant workers, Minnesota employers remain bound by the relatively onerous obligations imposed by WESA.

To fully understand their current obligations to pregnant employees, Minnesota employers must decipher what remains of their obligations under the PDA following Young, and those that are newly imposed since last year under WESA. In Young, the Supreme Court stated that where there is evidence showing that an employer accommodates a large percentage of non-pregnant workers but refuses to accommodate most pregnant workers, a jury could decide that the employer’s stated reasons for doing so, were merely a pretext for intentional discrimination.  Consequently, this decision can be interpreted to mean that if an employer does not want to be required to create light-duty work as an accommodation for pregnant employees, it should not create light-duty work to a significant percentage of its other employees.  Thus, while employers always are free to volunteer accommodations to pregnant workers, they maintain some control over whether they may be compelled by federal law to offer light-duty work to pregnant employees.  By contrast, WESA requires that employers provide reasonable accommodations to eligible employees (defined as those who have worked for the employer for at least twelve months, and for at least half-time during the previous twelve months) in Minnesota for health care conditions related to pregnancy or childbirth, unless providing such accommodations would be an undue hardship.  WESA goes further to provide that employers must grant eligible pregnant employees three specific accommodations regardless of whether doing so would impose an undue hardship.  The three specific accommodation requests Minnesota employers must grant to a pregnant employee under WESA, are: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.  Additionally, employers may not require medical documentation to support any of these specific requested accommodations. 

Based on WESA’s mandate that employers provide pregnant employees with work that accommodates lifting no more than 20 pounds, this form of “light-duty work” may not be avoided in Minnesota.  Nevertheless, Minnesota employers may bind themselves to even more mandatory accommodations under the federal PDA, or not if they assess their obligations in light of the Court’s decision in Young. 

Given the conflict between federal law under the PDA as it has recently been interpreted by the Supreme Court, and state law in WESA, Minnesota employers should reevaluate their light-duty policies and practices.  Those employers who want to limit access to light-duty work—at least any light duty beyond what is specifically required by WESA—only in limited circumstances, will need to meet two separate criteria: (1) they must have a solid business justification for limiting the work to a select group or groups of employees (the argument that extending an accommodation to more employees would be more expensive or less convenient will not be sufficient); and (2) the employees who are given access to light-duty work cannot comprise too significant a percentage of the workforce relative to pregnant workers.  In other words, providing access to light-duty work to too many employees will open the door for pregnant workers (and possibly disabled and other employees) to use it.  Further, it is likely that these same standards would apply to any other type of policy that employees may wish to use as an accommodation for pregnancy, e.g., telecommuting, modified schedules, etc.

A well-crafted policy on light-duty work or any other type of accommodation is essential to satisfy both factors articulated by the Court in Young v. UPS; i.e. making the necessary business case for limiting access to a given accommodation; and assuring that only a small percentage of employees are granted such accommodation.  A solid policy, if uniformly observed in practice, may avoid the foreseeable problems UPS is likely to face now that its case is remanded back to the trial court.  Reading into the Court’s analysis a jury may now find that UPS opened the door to light-duty work for too many non-pregnant individuals, to justify its refusal to provide it as an accommodation to pregnant employees as well.

In addition to addressing pregnancy accommodations, WESA created other new obligations for Minnesota employees that require reexamination of other workplace policies.  For example, employers may now wish to create or modify policies regarding parental leave and nursing rooms, and are now required to provide in their handbooks language regarding protection for discussing or disclosing compensation.

For more information on the implications of the Supreme Court’s new decision, or help with auditing or drafting policies and handbooks in view of this decision and WESA, contact Attorney James Sherman , at Wessels Sherman by phone: (952) 746-1700 or email: jasherman@wesselssherman.com.