Under the Delaware Pregnant Workers’ Fairness Act, employers must provide reasonable accommodations to female employees related to pregnancy, childbirth, or related medical conditions, to the extent the accommodation can be made without imposing an undue hardship on the business. The Act therefore mirrors the Americans with Disabilities Act’s requirement that employers make reasonable accommodations to employees.  This might imply that pregnancy is a disability…and for many women, that’s not the case. They don’t need job modifications or time off. However, there are some pregnant women who do need these things, and the law was enacted to address this situation.

What is an “undue hardship”?

An undue hardship for purposes of this law or the Americans with Disabilities Act is a practical measure. Considering the business’s needs and size, how difficult would it be to make the accommodation? For instance, if a pregnant woman approaches the company and asks for three months off during her last trimester, because she’s been nauseous, and she’s the only salesperson in the company, it would likely be an undue hardship to make that accommodation. The company isn’t forced by law to hire a replacement or to hold the person’s job open if to do so would put it out of business. The woman and company may come to some other agreement, such as she works from home (if it’s a job which could be done that way via phone or Skype or online), she’s allowed to take frequent breaks, she takes a week off to try a new anti-nausea medication, or they find some other alternative to alleviate nausea and allow her to work. Alternatively, the company may let her go and find a replacement, if the three months’ leave is an undue hardship.

When an employee requests an accommodation, the employer should explore with the employee the possible means of providing the accommodation, which may include, but are not limited to:

• allowing more frequent breaks or periodic rest;
• assisting with manual labor;
• modifying job duties;
• modifying work hours/schedules;
• temporary transfer to a less strenuous or less hazardous position; or
• providing a leave of absence.

The company may require the employee to provide a certification in connection with a request for reasonable accommodation that includes the following:

• the date the reasonable accommodation became medically advisable;
• the probable duration of the reasonable accommodation; and
• an explanatory statement as to the medical advisability of the reasonable accommodation.

If leave is provided as a reasonable accommodation, the employer can decide that the leave will run concurrently with the federal Family and Medical Leave Act and/or any other leave permitted by law. This is best practice if your business does not want to hold open a job for more than 12 weeks.

For more information about this topic or any other labor and employment issue, please contact Katherine W. Fry at kwitherspoonfry@offitkurman.com or302.351.0902

ABOUT KATHERINE R. WITHERSPOON

kwitherspoonfry@offitkurman.com | 302.351.0902

Ms. Fry has 22 years of litigation experience in every Delaware court, the U.S. Court for the District of Delaware, and the U.S. Court of Appeals for the Third Circuit. She has also represented clients in proceedings before the Delaware Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and the Delaware State Board of Education. Her employment practice focuses on discrimination; employment termination; unemployment compensation appeals; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; severance agreements; and labor relations.

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