November 19, 2018

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The District Of Columbia Enacts New Employee Protections, Requires Reasonable Accommodation for Pregnant Employees

Following the example of several other states and municipalities, the Council of the District of Columbia recently enacted (and the Mayor of the District of Columbia recently signed) the Protecting Pregnant Workers Fairness Act of 2014 (the “Act”).  The Act requires employers to provide reasonable workplace accommodations for workers whose ability to perform the functions of a job is limited by pregnancy, childbirth, a related medical condition, or breastfeeding.  The Act was transmitted to Congress on November 13, 2013 and is projected to become law and effective by the end of December 2014.

Examples of reasonable accommodations contemplated by the Act include:  longer or more frequent breaks; time off to recover from childbirth; use of private non-bathroom space for expressing breast milk; seating; light duty; a temporary transfer to a less strenuous or hazardous position; relocating the employee’s work area; acquiring or modifying equipment; a modified work schedule; and having the employee refrain from heaving lifting.

The process for requesting and evaluating a request for reasonable accommodation under the Act is similar to the process required for requests for accommodation of disability.  As with disability accommodation, employers do not have to provide accommodations that would be an undue hardship – i.e., significantly impact business operations or require significant expenses – and may require employees to provide a certification from their health care provider.

Under the new Act, employers may not require pregnant employees to take leave if another reasonable accommodation is available.  Likewise, employers may not require an employee affected by pregnancy, childbirth, related medical conditions, or pregnancy to accept an accommodation that the employee chooses not to accept if such an accommodation is not necessary for the employee to perform her duties.  Finally, employers may not refuse to hire an applicant based on the need for an accommodation.

Employers covered by the Act will be required to post and maintain in a conspicuous place a notice of rights in both English and Spanish.  Employers must also provide written notice to all new employees at the start of their employment; to all existing employees within 120 days after the Act becomes effective; and to any employee who notifies the employer of her pregnancy or other condition covered by the Act, within 10 days of the notification.  The notice must be translated for any non-English or non-Spanish speaking employees.

The Act allows injured employees to seek redress either through an administrative action or a civil action.  Employers who violate the Act face civil penalties ranging from $1,000 to $2,000 per offense and additional civil penalties not to exceed $50 per day for each day that an employer fails to provide the required notice of rights.

The Mayor is required to issue rules and procedures, including guidance on how and when an employer can prove “undue hardship,” within 60 days of the Act’s effective date.  We anticipate that either the Mayor’s office or the DC Department of Employment Services will also publish a template notice for employers to use.

© 2018 Proskauer Rose LLP.

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The complexity and heightened scrutiny surrounding executive compensation arrangements and employee benefits plans and their assets continue to grow. Proskauer’s Employee Benefits, Executive Compensation & ERISA Litigation Practice Center is at the forefront of addressing the unfolding legal and business developments affecting these arrangements and plans, and is formulating innovative, practical and proactive legal strategies.

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