Delaware Now Requires Employers to Provide Pregnancy Accommodations

Author: Beth P. Zoller, XpertHR Legal Editor

September 18, 2014

Delaware employers must provide reasonable accommodations to pregnant and nursing employees and job applicants under a new law enacted on September 9, 2014. The Pregnant Workers Fairness Act, taking immediate effect, also requires employers to treat pregnant and nursing employees and applicants the same as any other individuals who are similar in their ability to work.

Delaware employers should update their workplace policies and practices to comply with the new law and train supervisors on how to respond to a request for accommodation.

The new law requires an employer to provide accommodations such as:

• Additional equipment for sitting;
• More frequent or longer breaks;
• Periodic rest;
• Assistance with manual labor;
• Job restructuring;
• Light-duty assignments;
• Modified work schedules;
• Temporary transfers to less strenuous or hazardous work;
• Time off to recover from childbirth; or
• Break time and appropriate facilities for expressing breast milk.

An employer need not provide such accommodations if doing so would pose an undue hardship, defined as an action requiring significant difficulty or expense, based on factors such as:

• The nature and cost of the accommodation;
• The employer's overall financial resources;
• The overall size of the employer's business (i.e., the number of employees and the number, type and location of its facilities); and
• The effect on the employer's business operations.

The new law also makes it unlawful for an employer to:

• Deny employment opportunities to a job applicant or employee, if the denial is based on the need to provide reasonable accommodations;
• Require an individual affected by pregnancy to accept an accommodation the individual chooses not to accept if she does not have a known limitation related to pregnancy or if such accommodation is unnecessary for the applicant or employee to perform her essential job duties;
• Require an employee to take leave if another reasonable accommodation can be provided; and
• Take adverse action against (e.g., fire or demote) an employee for requesting or using a reasonable accommodation due to pregnancy or childbirth.

The law also requires employers to notify employees of their right to be free from pregnancy discrimination and seek reasonable accommodations based on pregnancy. This notice must be provided:

• In writing to new employees at the commencement of employment;
• Orally or in writing to existing employees within 120 days after September 9, 2014;
• Orally or in writing to any employee who notifies the employer of her pregnancy within 10 days of such notification.

Employers also are required to conspicuously post notice of this at their place of business in an area accessible to employees.

States such as Illinois, California, Connecticut, New Jersey and West Virginia and cities such as Philadelphia and New York City have also enacted similar legislation.