The District of Columbia recently joined twelve other states^[1] that have enacted laws requiring employers to accommodate certain limitations associated with pregnancy.  The Protecting Pregnant Workers Fairness Act (the “Act” or “PPWFA”) of 2014 was passed on October 23, 2014 and is under Congressional review.  It is currently expected to become effective on March 3, 2015.

Accommodation Requirements

The PPWFA requires employers in the District of Columbia to make reasonable accommodations to the known limitations related to pregnancy, childbirth, and related medical conditions, and to make reasonable accommodations to known limitations related to breastfeeding.  Employers are required to make such reasonable accommodations unless doing so would impose an undue hardship.  The Act specifically defines “undue hardship” as any action that requires significant difficulty in the operation of the employer’s business or significant expense on the behalf of the employer when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation.  The Mayor is required to issue rules to establish specific procedures for proving undue hardship within 60 days of the Act’s effective date.

Some examples of reasonable accommodations under the PPWFA are:

• More frequent or longer breaks;

• Time off to recover from childbirth;

• The acquisition or modification of equipment or seating;

• Temporary transfer to a less strenuous or hazardous position or other job restructuring, such as providing light duty or a modified work schedule;

• Allowing the employee to refrain from heavy lifting;

• Relocating the employee’s work area; or

• Providing a private non-bathroom space for expressing breast milk.

Employers may require employees to provide a certification from their health care provider regarding the medical advisability of a particular reasonable accommodation, to the same extent such a certification is required for other temporary disabilities.

Prohibited Conduct

In addition to its reasonable accommodation requirements, the Act also prohibits employers from taking adverse action against employees requesting or using reasonable accommodations and from denying employment opportunities to employees or job applicants because of the need to make a reasonable accommodation.  The Act further prohibits employers from requiring an employee to accept an accommodation that the employee does not want when the employee does not have a known limitation related to pregnancy, childbirth and related medical conditions, or breastfeeding.  Finally, the Act also specifically prohibits employers from requiring an employee to take leave if a reasonable accommodation could be provided instead.

Notice Requirements

The PPWFA requires employers in the District of Columbia to post a notice of rights under the PPWFA in a conspicuous place available to employees.  Employers must also provide a written notice of rights under the PPWFA to: (1) new employees at the commencement of employment; (2) existing employees within 120 days after the effective date of the Act; and (3) any employee who notifies the employer of her pregnancy, or any other condition covered by the Act, within 10 days following such notification.  The notice of rights must be in English and Spanish and employers must provide accurate written translations of the notice to any non-English or non-Spanish speaking employees.

Enforcement and Penalties

There is a private cause of action under the PPWFA for any employee who claims an employer has violated the employee’s rights under the Act.  Employees can either file an administrative complaint with the DC Department of Employment Services (“DOES”) or a civil action in court. If a violation of the PPWFA is found, the employer can be ordered to pay back pay with interest, reinstate the employee (or comply with some other form of injunctive relief), and pay reasonable attorneys’ fees and costs.  In administrative actions, the employer may also be ordered to pay civil penalties of up to $500 for each day or portion thereof that a violation of the PPWFA continues.

If the DOES determines that an employer is not in compliance with the Act, it can initiate a civil action of its own.  Significantly, the DOES can also revoke or suspend any registration certificates, permits, or licenses held or requested by the employer until a violation is remedied.

Finally, for willful violations of the PPWFA’s substantive provisions, the Act provides a civil penalty of $1,000 for the first offense, $1,500 for the second offense, and $2,000 for the third offense (and for each subsequent offense).  The Act also provides a civil penalty of up to $50 per day for each day that the employer fails to post the requisite notice, although the penalty is capped at $250 unless the ongoing failure to post the notice is willful.

Implementing Rules

The Act requires the mayor to issue rules implementing the Act within 60 days of its effective date.  It is also likely that the DOES will issue a notice of rights form that employers can utilize to comply with the Act’s notice requirements.

We will continue to monitor the status of the PPWFA and will keep you apprised of new developments as they arise.  In the meantime, Sheppard Mullin’s Labor and Employment attorneys can assist you in developing a plan for compliance once the Act goes into effect.

_{[1]  Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maryland, Minnesota, New Jersey, Texas and West Virginia have enacted laws requiring accommodations related to pregnancy; however, some of these laws only apply to public employers and some of them only require accommodations for pregnancy-related disabilities.  Some cities and municipalities, notably New York and Philadelphia, have also enacted pregnancy accommodation laws.}