The West Virginia Legislature recently passed the Pregnant Workers’ Fairness Act, requiring employers to make the same sort of accommodations for pregnancy, childbirth, and related medical conditions that employers already make for temporary disabilities not related to pregnancy. The act obligates employers to make reasonable modifications for employees who have limitations that stem from pregnancy, which first must be documented by a healthcare provider.
In addition, the West Virginia Human Rights Commission is now required to propose legislative rules to outline the terms of the act. The rules, which go into effect within two years of enactment, will lay down guidelines for interpreting the act’s prohibition against pregnancy discrimination on the basis of gender, while helping men and women fully understand their individual rights.
Under these rules the West Virginia Human Rights Commission clarifies several definitions. Many of these definitions are identical or very similar to how these terms are defined in the Americans with Disabilities Act.
The term “pregnancy” includes not only current and past pregnancy, but also potential or intended pregnancy. This adds emphasis to the time of a hiring decision as it relates to an employee’s pregnancy.
The term “reasonable accommodations” states that modifications or adjustments are to be determined on a case-by-case basis and be made to the known limitations related to pregnancy, childbirth, or associated medical conditions allowing an employee to remain in the position for which they were hired. Furthermore, “reasonable accommodations,” also indicates when these adjustments or modifications must be provided, what is included in those alterations, how they are to be requested by the employee, the prohibition on retaliation for requesting such accommodations, and when an employer is not required to abide by those requests. This particular section of the rules states that an accommodation can only be requested upon the advice of a licensed healthcare provider. However, the act itself requires that written documentation from a healthcare provider be obtained, specifying the limitation and suggesting an accommodation that would address special needs.
The final two sections of the rules address when an employer can be held liable for pregnancy discrimination and steps that can be taken to prevent unlawful scenarios, along with a prohibition on pre-employment questions related to pregnancy. Under these rules, the Commission would examine the circumstances of the particular employment relationship in determining an employer’s liability. Those individuals affected by pregnancy apply to both men and women under the new rules.
Consider this: An employee informs a supervisor of her pregnancy and then shortly after he meets with her to discuss alleged performance problems when the employee had consistently received outstanding performance reviews during previous years. Despite this record, the employer still discharges the employee on the grounds of poor performance. Given the lack of documentation of poor performance and the timing of the discharge, the employee would have a strong case alleging pregnancy discrimination.
While many workers affected by pregnancy never experience related complications, those who do must be given greater consideration to help avoid situations of unpaid leave or termination. Employers need to be aware of the rules established by the Commission because they could be found to have discriminated on the basis of pregnancy if an employee’s related medical condition is discovered to be all or part of the motivation for an employment decision.
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Written by Lindsay M. Gainer