Beyond FMLA: Expanding Pregnancy Protections in Virginia

Pregnancy, parental leave, and other childbirth-related issues are among the most common sources of conflict between employees and employers, and that conflict often erupts into litigation. However, pregnancy discrimination and related issues are covered by a variety of federal and state laws, resulting in a patchwork of overlapping coverage. Such laws have also proliferated in recent years, evolving beyond the basic protections of the Family and Medical Leave Act. Both employees and employers would thus be well-served by a refresher on the most important federal and state laws governing pregnancy discrimination. If you’re experiencing pregnancy discrimination or facing an allegation thereof, a Richmond employment lawyer can assist you.

Foundation: The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is the primary federal law governing parental leave. At a high level, it requires covered employers to provide up to 12 work weeks of unpaid, job-protected leave during a 12-month period for select reasons, including the birth of a child and care for a newborn.

Employees are eligible for FMLA leave if all of the following are true:

They have worked for their employer for at least 12 months
They have accumulated at least 1,250 hours of work in the past 12 months
They work at a location where their employer employs at least 50 employees within 75 miles

Eligible employees can take FMLA leave both before and after the birth of a child, although leave taken for both must be completed within 12 months of the child’s birth. Critically, employers must reinstate employees to the same or an equivalent position upon their return from FMLA leave. Failure to do so may expose employers to discrimination, retaliation, or wrongful termination claims. For more information on re-onboarding employees after leave, please speak to a Richmond employment lawyer.

Anti-Discrimination: The Pregnancy Discrimination Act

While FMLA governs an employee’s right to take leave, the federal Pregnancy Discrimination Act (PDA) clarifies that the terms “because of sex” and “on the basis of sex” in Title VII of the Civil Rights Act include on the basis of pregnancy, childbirth, and related medical conditions. PDA prohibits employers with 15 or more employees from discriminating in hiring, firing, promotion, job assignments, or benefits based on pregnancy. Put another way, it requires employers to treat pregnancy the same as any other medical condition that could affect an employee’s ability to work. In practical terms, this means that employers who offer disability leave or other accommodations for employees with other temporary disabilities (e.g., a broken arm) must do the same for pregnancy-related limitations. Failure to do so may result in an employment discrimination claim.

Accommodations: The Pregnant Workers Fairness Act

The newest federal pregnancy discrimination-related law, the Pregnant Workers Fairness Act (PWFA), requires covered employers to provide reasonable accommodations for limitations related to pregnancy, childbirth, or a related condition. PWFA applies to employers with 15 or more employees and requires them to engage in an interactive process to determine a reasonable accommodation.

Generally, a reasonable accommodation is any adjustment to a work environment or job duty that allows an otherwise qualified employee to perform the job in question. In the pregnancy context, reasonable adjustments could include:

Temporary light duties
More frequent breaks
Stools or chairs for jobs that require standing
Modifications to uniforms or dress code
Access to a private space to express breast milk

As with claims under the Americans with Disabilities Act (ADA), covered employers are not required to provide a reasonable accommodation if doing so would cause an undue hardship — generally interpreted to mean significant difficulty or expense. However, the burden of proof is on the employer to show undue hardship. For more information about requesting reasonable accommodations for pregnancy or any other condition, please speak to a Richmond employment lawyer.

Break Time: The Providing Urgent Maternal Protections for Nursing Mothers Act

The Providing Urgent Maternal Protections for Nursing Mothers Act (commonly called the PUMP Act) amends the Fair Labor Standards Act to require covered employers to provide reasonable break time to employees who need to express breast milk while at work for up to one year after the birth of the employee’s child. “Reasonable break time” has no fixed definition; rather, breaks must be as frequent and as long as needed. Employers must provide a private space for the expression of breast milk that is (1) not a bathroom, (2) shielded from view, and (3) free from intrusion by coworkers and the public. While employers are not required to create a permanent, dedicated space for breast milk expression, the space must nonetheless be available when an employee needs it and functional for that purpose. Breaks may be paid unless the employee is not relieved of work duties while on break.

Virginia Commonwealth Law: The Virginia Human Rights Act

Pregnant workers are also protected at the state level through the Virginia Human Rights Act (VHRA), which encompasses pregnancy, childbirth, and related conditions. Similar to Title VII of the Civil Rights Act through the PDA, the VHRA establishes that the terms “because of sex or gender” and “on the basis of sex or gender” include on the basis of pregnancy, childbirth, or related conditions, including lactation. Under a 2020 amendment to the VHRA, employers with five or more employees must provide reasonable accommodations for limitations related to pregnancy, childbirth, and related conditions unless the employer can demonstrate that doing so would impose an undue hardship. (This is similar to the requirements of the PWFA and ADA.) The VHRA also creates a private right of action for employees denied reasonable accommodations for pregnancy-related conditions or who face retaliation for requesting such accommodations.

Stay in the Loop on Pregnancy Discrimination Law by Consulting a Richmond Employment Lawyer

Laws surrounding pregnancy and parental leave are evolving rapidly, and failure to keep up with the latest changes can result in costly mistakes. To avoid such outcomes, work with a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.