Federal regulations proposed last week could significantly change how schools accommodate pregnant employees.
The rules, which would implement the Pregnant Workers Fairness Act, would expand rights for the teaching workforce — which is predominantly women — as well as all other pregnant district employees. The law went into effect June 27.
Notably, part of the expanded rights for pregnant employees may include being excused from performing one or more essential functions of their job for up to 40 weeks during their pregnancy, and an additional 40 weeks to one year after returning to work — for a potential total of nearly two years, when leave to recover after childbirth is included.
The U.S. Equal Employment Opportunity Commission is asking stakeholders to weigh in on whether the latter 40 weeks should be expanded to one year.
"I think that's going to catch a lot of schools off guard," said attorney Mark Phillis of labor and employment law firm Littler Mendelson. Phillis has counseled employers on workplace accommodations for over 25 years. "It is going to require school administrators to think more creatively about potential accommodations, and to see if there are ways that they may be able to accommodate an employee who can't do one of the key roles that they have in the workplace."
For example, janitorial or other support staff may not have to do heavy lifting or move materials even if it could be considered a core part of their job. In another scenario, districts may have to accommodate an employee who cannot travel to work due to morning sickness, even if being present may be considered an essential function.
Under the American with Disabilities Act, districts are not required to accommodate employees if their disability prevents them from doing an essential function of their role. However, the new regulations, which once final will implement PWFA, veer from that provision as long as accommodating a temporary change to their essential function does not pose an "undue hardship" on districts.
"I think there are going to be some instances where employees are requesting accommodations that — if they had a disability — the school would say, 'Well, we're not able to accommodate that,'" said Phillis. With the proposed regulations, schools "are going to have to think twice about that."
The proposed EEOC rules would also require districts to allow in virtually all cases:
- Beverages in the employee's work area.
- Employees to sit or stand as needed.
- Frequent breaks to eat, drink, and use the bathroom as needed.
A pregnant teacher who would otherwise only be allowed bathroom breaks when her class is at lunch may request additional bathroom breaks, according to an example EEOC included. In that case, schools could have to provide another teacher, aide or administrative assistant within a few minutes' notice to monitor the pregnant teacher's classroom.
However, it's likely that many schools already have such basic accommodations, said Phillis.
Telework could become a reasonable accommodation
The proposed regulations would have implications for a majority of the teaching workforce, which was 77% female in 2020-21, according to the National Center for Education Statistics' most recent available data. They would also impact all other pregnant public school employees, including but not limited to administrators and district leadership.
They come less than two months after the U.S. Department of Education proposed Title IX regulations that are expected to be finalized in October. Those proposed rules would require districts to offer both pregnant students and employees protections, such as breastfeeding spaces.
The PWFA proposals also come in the wake of the COVID-19 pandemic that, for the first time, introduced into the education sector the possibility of completely remote work. While remote schooling during that period came with extensive challenges for districts, staff and students alike, it could be requested as a reasonable accommodation under the new proposals — as long as it wouldn't pose an undue hardship on the district.
As a result, Phillis said he expects more people to request telework as an accommodation, a request schools may have to consider granting especially for administrative staff with nonstudent-facing roles.
If schools decide otherwise, "I think you're going to have to develop a better case for why remote work is not something that's a reasonable accommodation in these situations," said Phillis.
Employers, including schools, have 60 days to comment on the proposed regulations, after which the EEOC will consider the feedback and finalize the rules. The proposal, which was published in the Federal Register on Aug. 11, had already garnered 7,208 comments as of Aug. 16.