The new Washington state Healthy Starts Act requires employers with 15 or more employees to provide accommodations to pregnant employees above and beyond those accommodations required by other available laws, including the Washington Law Against Discrimination (WLAD) and the Americans with Disabilities Act Amendments Act (ADAAA). Some of the required accommodations must be provided without medical certification and regardless of whether such accommodations would create an undue hardship.
Accommodations That Employers Must Provide Without Proof or Regard for Hardship
The Healthy Starts Act requires covered employers to provide the following four accommodations to pregnant employees both without a showing of pregnancy-related disability and regardless of whether such accommodations would cause an undue hardship to the employer:
- limiting lifting to 17 pounds;
- offering more frequent, longer, or flexible restroom breaks;
- modifying a no-food-or-drink policy; and
- making seating available or allowing the employee to sit more frequently if her job requires her to stand.
Depending on an employee’s position and the covered employer’s business or industry, these accommodations may or may not be particularly difficult to provide. Notably, a covered employer may not request medical certification of a pregnant employee’s medical need for these accommodations. If requested, a covered employer must simply provide the accommodations.
Accommodations That Employers May Provide With Proof and Regard for Hardship
In addition to the above accommodations, covered employers may be required to provide the following, so long as doing so does not create an undue hardship for the employer:
- job restructuring, part-time or modified work schedules, reassignment to a vacant position, or employee work station modification (which can include acquiring or modifying equipment or devices);
- temporary transfer to a less strenuous or less hazardous position;
- assistance with manual labor and limits on lifting;
- scheduling flexibility for prenatal visits; and
- any further pregnancy accommodation that an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the Washington State Department of Labor and Industries or the attending healthcare provider of the employee.
As under the WLAD and ADAAA, a covered employer may request medical certification in support of an employee’s need for these accommodations, and the employer should engage in the interactive accommodation process to evaluate the reasonableness of the above accommodations and whether those accommodations would create an undue hardship. Notably, the Healthy Starts Act defines “undue hardship” as “an action requiring significant difficulty or expense,” which is the identical definition found in the ADAAA.
Covered employers are prohibited from engaging in certain actions. The prohibited acts are the following:
- failing or refusing to make reasonable accommodation for an employee for pregnancy, absent an undue hardship;
- taking adverse action against an employee who requests, declines, or uses an accommodation;
- denying employment opportunities to an otherwise qualified employee because of the qualified individual’s need for a reasonable accommodation required by the Healthy Starts Act; or
- requiring an employee to take leave if another reasonable accommodation can be provided for the employee’s pregnancy.
These requirements can be found in RCW 43.10 and may be enforced by the attorney general of Washington through a complaint process. In addition, an employee may pursue a civil cause of action and seek damages which could include an injunction, actual damages, costs, attorneys’ fees, and other available remedies under state or federal law.
As employers update their handbooks, they should also consider including information about the available accommodations for pregnant employees and a statement prohibiting retaliation for requesting accommodations.
There are many additional nuances to Washington’s new Healthy Starts Act. For an in-depth discussion of employers’ obligations to accommodate pregnant employees, in addition to the details on a number of recently-enacted state and local laws pertaining to minimum wage, paid sick leave, and paid family leave, join us for our upcoming webinar, “Paid Sick Leave, the Healthy Starts Act, and More: Washington State Employment Law Update,” featuring Adam T. Pankratz (shareholder, Seattle) and Sonja D. Fritts (of counsel, Seattle) on Tuesday, November 7, 2017, at 11 a.m. Pacific.