New Standards Reshape Workplace Accommodations for Disability, Pregnancy and Medical Marijuana
New standards for disability, religious and pregnancy-related accommodations are giving employers good reasons to revisit workplace policies and decision-making.
Recent court rulings and agency moves offer practical takeaways for employers: slow down, ask questions, document discussions, and evaluate each request in the context of the job, the employee’s limitations and the business’s operations.
Disability accommodations require an individualized process.
The Americans with Disabilities Act (ADA) does not require an employer to remove essential job functions. But the analysis does not stop simply because an employee can still perform the job without the requested accommodation.
A court recently allowed a failure-to-accommodate claim to move forward, even though the employee said she could perform the job without the requested break. It ruled that “can” does not always mean “must.”
Risk areas to watch out for:
- Before reassigning an employee, employers should identify the employee’s limitations, review the essential functions of the current position, and determine whether another accommodation would allow the employee to stay in that role.
- Timing and documentation can make the difference if there’s a dispute over a request. But there is no magic number of days to properly process a request. Employers need to engage in a good-faith interactive process with records showing what was requested, what was considered and why the employer responded the way it did.
Courts are raising the bar for employers to prove religious accommodation requests cause undue hardship.
The Supreme Court’s decision in Groff v. DeJoy changed how courts look at religious accommodation requests. Recent rulings show a shift away from the older de minimis standard toward a “substantial increased costs” framework. Some requests that may once have been denied could now require a closer look.
When handling a religious accommodation request, employers should focus on the operational and safety impacts of the accommodation and their associated costs.
Pregnant Workers Fairness Act (PWFA) and PUMP Act obligations expand employer duties.
The PWFA created a broad set of accommodation requests, including:
- Leave for health care appointments
- Light duty
- Remote work
- Schedule changes
- Temporary reassignment
- Temporary suspension of one or more essential functions
The PUMP Act requires reasonable break time and a private place other than a bathroom for an employee to express breast milk for one year after a child’s birth.
Reasonableness of a request under these laws depends heavily on the workplace context. A request that a larger organization may be able to handle might be harder for a small team to accommodate.
Employers need to update their workplace policies on medical marijuana.
Marijuana remains a Schedule I controlled substance in general, but in April, the Department of Justice moved certain marijuana products into Schedule III.
Recreational marijuana remains illegal under federal law. Employers still need to structure policies that address safety-sensitive roles, federal regulations, state-law protections and the limits of current testing methods. But they may now need to treat medical marijuana like other medications under the ADA.
What employers should do now:
- Audit accommodation, leave and drug-testing policies to confirm they reflect current rules for disability, religion, pregnancy-related and lactation issues.
- Document each step of the interactive process, including requests, follow-up questions, medical support sought, alternatives considered and the reasons for the final decision.
- Evaluate whether transfers, leave or testing practices are being used too quickly instead of after a fuller review of available options.
- Train supervisors and human resources teams to communicate promptly and avoid assumptions.
- Update lactation and pregnancy-related accommodation procedures, including space planning and communication protocols for managers.
Please contact Courtney Joiner, Stephanie Poucher and Rebecca Sha or any member of Phelps’ labor and employment team with questions.