GC Agenda: September 2023 – Labor & Employment

Steven M. Swirsky and Nancy Gunzenhauser Popper, Members of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, contributed to the Labor & Employment section of Practical Law The Journal’s GC Agenda: September 2023. (Read the full version – subscription required.)

Following is an excerpt:

A round-up of major horizon issues for general counsel. …

Labor & Employment

Pregnant Workers Fairness Act

Employers with 15 or more employees should revise their policies and procedures to provide reasonable accommodations for employees and applicants with limitations related to pregnancy, childbirth, or related medical conditions in light of the recently effective Pregnant Workers Fairness Act (PWFA).

The PWFA fills the gap in federal protections for workers affected by pregnancy, childbirth, and related medical conditions by allowing workers with uncomplicated pregnancies to seek accommodations. Employer coverage is the same as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). The PWFA uses the same definitions of “reasonable accommodation,” “undue hardship,” and “interactive process” as the ADA.

Considering this new law, employers should understand that:

• A worker need not be substantially limited by a pregnancy, childbirth, or related medical condition.
• An employee or applicant is still qualified if their inability to perform essential functions of the job is temporary and can be reasonably accommodated.
• A wide range of conditions may be related to pregnancy or childbirth, including:
  • fatigue, nausea, or vomiting;
  • anxiety or depression;
  • varicose veins or swelling of the legs, ankles, or feet;
  • sciatica, carpal tunnel syndrome, or nerve damage;
  • infertility and fertility treatments;
  • menstruation and use of birth control; and
  • termination of a pregnancy, including by miscarriage, stillbirth, or abortion.
• Some common-sense accommodations are almost always reasonable, including allowing employees to:
  • take more frequent restroom breaks;
  • have water available in their work area;
  • take breaks as needed to eat and drink; or
  • sit at times if their work requires standing or stand at times if their work requires sitting.
• A leave of absence may be a reasonable accommodation, but employers should first consider whether another accommodation would allow the employee to keep working without creating an undue hardship.

Employers should also:

• Review their accommodation policies and train HR personnel, supervisors, and managers on the new law.
• Check how any applicable state law’s requirements compare to the PWFA’s requirements. A state law may:
  • have specific accommodation requirements;
  • require specific procedures to assess and decide accommodation requests; or
  • have different standards related to whether an accommodation is reasonable.
• Engage in an interactive dialogue with employees about potential accommodations. …

Religious Accommodations Under Title VII

The Supreme Court recently changed the religious accommodation standard under Title VII that employers have relied on for over 40 years.

In Groff v. DeJoy, the Court rejected the standard that allowed employers to deny requests for religious accommodation that would impose more than a de minimis burden on the employer. The Court held that an employer denying a religious accommodation must show that the burden of granting it would result in substantial increased cost in relation to conducting the employer’s business.

In response to this development, employers should:

• Review their accommodation policies and remove any mention of a de minimis standard for religious accommodation requests.
• Understand that the standard for denying accommodation is higher now, although not the same as the undue hardship test under the ADA, which requires demonstrating significant difficulty and expense.
• Stay current on how lower courts in their jurisdiction apply the new standard in future cases.
• Train HR personnel, supervisors, and managers on how to recognize requests for religious accommodation.
• Engage in an interactive dialogue with an employee requesting a religious accommodation about potential accommodations to address the employee’s religious practices or beliefs.
• Implement a centralized procedure for responding to requests to ensure consistency.

When evaluating a request for religious accommodation, employers should:

• Assess how the requested accommodation impacts the employer’s operations, including:
  • the shifts or hours of coverage needed;
  • the cost of granting an accommodation, including non-monetary costs; and
  • how the accommodation impacts other employees’ ability to take breaks or days off.
• Understand that coworker or customer animosity toward any particular religion or religion in general is not an undue burden.
• Be aware that these are emotional and personal issues and treat all employees with sensitivity and respect.
• Consider options that the employer may not have considered before, such as transfers, premium pay, or modifying work schedules.
• Understand that an accommodation that resolves the religious conflict (such as swapping a shift on the Sabbath with an unpopular shift on a different day) is sufficient, even if it is not the accommodation the employee requested or prefers.