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Season 3, Episode 9: The Law at Work - Navigating Employment Challenges
From Lawyer to Employer: A Shipman Podcast
Welcome back to From Lawyer to Employer, a Shipman podcast that keeps you informed on the latest developments in labor and employment law. In this episode, Shipman attorneys Dan Schwartz and Keegan Drenosky discuss the complexities of workplace accommodations, including disability, religious, and pregnancy-related requests. Gain practical insights on navigating the interactive process, understanding legal obligations, and fostering an inclusive workplace. Tune in for actionable insights designed to help employers stay compliant and support their workforce.
Host: Welcome to from Lawyer to Employer, a shipment podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Apple, Spotify, or wherever you listen. Thank you for joining us, and we hope you enjoyed today's episode.
And welcome back to another episode of From Lawyer to Employer. I'm your host, Dan Schwartz, a partner at Shipment & Goodwin in the Labor and Employment and Education Department. On today's podcast, we are going to be talking about accommodations, disability, religious, and pregnancy. We're going to talk about all aspects of it and really try to give you an overview of thinking about accommodations in a way that perhaps you haven't thought about before. So, for that task, I've brought in my partner, Keegan Drenosky, a partner in the group in our Stanford office to join us. So welcome Keegan.
Keegan Drenosky: Thanks Dan for having me.
Dan Schwartz: So, let's just set it up here. Keegan, we hear often about accommodations and what they mean or don't mean. But really, let's get back to the basics where do at least do some of these obligations come from?
Keegan Drenosky: So, these obligations come from both federal and state laws. On the federal side, we have the Americans with Disabilities Act, the ADA, which talks about providing different reasonable accommodations to employees so that they can perform the essential functions of their job.
We also have the notion of religious accommodations that come into play under Title VII, which is slightly different and we can talk a little bit more about that. But they've really developed along similar slightly different paths, but for purposes of the ADA, and then in Connecticut, we have state law prohibiting disability discrimination that has similar protections a person has to have. What that disability is defined and be a qualified disability under the law. So it's not just, anyone that says I have this medical issue, or I'm disabled. It has to be a qualified disability under the law.
Dan Schwartz: So let's assume for the sake of argument, 'cause we could do a whole podcast on what is or is not a disability, but someone has a disability, they're a qualified individual.
Where does the reasonable accommodation fit in, at least on the ADA context?
Keegan Drenosky: So, if someone you know has a qualified disability, the idea of a reasonable accommodation comes into play to be a modification or an adjustment to a person's job or the work environment, or really the way things are typically done, either during their employment or during the hiring process - that allows that person with the disability to have an equal opportunity, not just to get a job, but to successfully perform their job tasks and the essential functions of their role to the same extent as someone that doesn't have a disability. So the ADA specifically requires that reasonable accommodations as they relate to three different aspects of employment.
So, we have ensuring the equal opportunity in the application process. Enabling a qualified individual with a disability to perform the essential functions and we can talk more about what that is of the job. And making it possible for the employee with the disability to enjoy the equal benefits and privileges of employment.
So that's really what the law is concerned about with respect to people that have disabilities.
Dan Schwartz: And are there any like magic words an employee needs to use to request an accommodation?
Keegan Drenosky: There's really no magic words, and as you and I know from practice frequently, you don't have an employee that does use those magic words of, I need a reasonable accommodation for a disability.
Oftentimes it's informal. It's just a discussion between a supervisor and an employee or HR. They've reached out and asked for something they need and that really puts the employer, on alert that this person might need some type of accommodation and kicks off the process of going through this interactive back and forth regarding what the employee may need to be able to do the essential functions of their role.
Dan Schwartz: Yeah I think people often think if someone's blind, that'll be apparent that someone needs a reasonable accommodation. But I think as we've seen, accommodation can take all shapes and sizes and someone's disability may also not be apparent as well. So that's a really good point that you bring up.
So, you were just mentioning this sort of interactive process. What does that look like and how does that sort of fit into the accommodations notion?
Keegan Drenosky: Sure. A lot of times people hear that phrase and they think it has to be something very formalized with everything in written letters or, but it can really can be just an interactive, informal back and forth with the employer and the employee.
So, the employee may request the type of accommodation they think they need to be able to do the job. Say for instance, someone has ADHD and they need additional time on assignments. They might ask for that, and perhaps that's something the employer can give and says, no problem. And they set that up and then they evaluate if that's working to allow the person to do the job functions.
Maybe that's something the employer can't do because they really can't give additional time or, they need someone in a set schedule and they have to think about, is there some other accommodation that the employer can propose and is that acceptable to the employee? And that's this back and forth. At some point there may be a request for documentation from a doctor to help with that process to show what the employee really needs. We other examples are like, you have someone say with a back injury or they need a standing desk, things like that are a little bit easier than some of the ones we've seen lately, which have to do more with mental health or other things that people are requesting, but that's why the back and forth is important - because an employer might not be able to agree to something that the employee is asking because it's causing them a hardship and it's a little bit difficult for them to do, but they can propose something as well and have that discussion with the employee.
Dan Schwartz: So, you said something that I think is important for employers to think about, which is just because the employee requests a reasonable accommodation, the employer doesn't necessarily have to agree to that. If there's another accommodation that the employer can propose.
Keegan Drenosky: Yeah, that's correct. Even if it is a reasonable accommodation and that the employee has proposed, the employer can, say can we do this instead and work with the employee? Because in the eyes of the employer, they're looking to minimize disruption to other employees to allow this person to be on the same footing as those without a disability and do their job, but not necessarily to go above and beyond and give them something that would put them. In a position where they're looking to be even more successful. It really just, the point of this is to let them do the essential functions of their role. And so that's what the focus should be, and that's where the back-and-forth process is really important.
Dan Schwartz: Yeah. The other, another thing you mentioned was evaluating the effectiveness of an accommodation. So, I think sometimes employers think ‘ well, we tried one thing, it didn't work’. So that's the end of their obligations. But I think you were mentioning it, it goes a little bit further than that.
Keegan Drenosky: Yeah. So, if if accommodation is put into place and it's not working, that's certainly not the end of it. The employer has to look to see, is there something else we can do to allow the person to be able to do their job?
And it may ultimately be that there's not. But certainly, you have to go through that process before you would get to that end point where both the employee employer should at that point be on the same page to understand, I can't, there, there's really no accommodation that could be made here, but that's the end.
We need to go through the whole process first to make sure there's not something that could be done. And typically, I would say, when we see that happen, as if there's a job where an essential function involves heavy lifting, and it's really something that can't be changed to another role or taken out of the function of the job. Those are the more clear-cut ones, but a lot of jobs, especially ones in the office, don't necessarily fall into that easy or category of determining what's an accommodation that we can do and that we can't do.
Dan Schwartz: So typically I think you say, an employer doesn't have to get rid of essential functions of the job. They just need to provide accommodations if it can be reasonable to allow the employee to perform the essential functions of the job.
Keegan Drenosky: That's exactly right. And the tricky part with that comes into looking at what is really essential to a role. A lot of times an employer's job descriptions will come into that if you end up, in litigation over an issue like this.
So, I always urge employers to make sure that those things that are very essential to the job are in the description. So, there can't really be a question later about that being part of the role.
Dan Schwartz: Are there limits to accommodations that employers should be aware of?
Keegan Drenosky: Yeah, absolutely. And we get this question a lot, especially as more employees want to either go on leave or work remotely as an accommodation.
Really, if something is an undue hardship to an employer, they don't need to provide that accommodation. And that doesn't just mean in the sense of, monetary, there's not a limit on what amount of money it costs someone to provide that would make it, per se, an undue hardship. It's really looking at sort of the totality of the circumstances in the case-by-case basis.
Also, if something was causing a direct threat to other employees, which we saw when we were back in the world of dealing with vaccines and accommodations related to vaccine requirements. So those are the two of the limits that we have under the law that, go into what does an employer actually have to provide.
Dan Schwartz: Yeah, your point on it, not necessarily being related to costs is a good one to keep in mind. I know we've had questions where someone's working remotely, but the performance is really suffering, and the employer asks can we require them to come in person? Because it's not really working. And I think there you can change up the accommodations to really address the performance issues, because ultimately you need to get the employee to perform. So, one more question before we switch gears on that, which is, let's suppose a person's doing fine in their job. They're, meeting satisfactory expectations of the essential functions of the job, but they say, ‘you know, I'd like an accommodation which would allow me to do the job better and really be a premier performer’, and I know there are exceptions and everything's going to be a little case by case specific, but in general, does an employer need to provide an accommodation in that instance?
Keegan Drenosky: So, I would say in general, no, because really the purpose of the law is to allow the employee, again, to perform those essential functions, not to be, the star performer, just to meet the expectations of their role and do those job functions.
As a practical matter I think that's going to be more of a business decision on what the person's asking for and really is that going to help the employer as well, giving that additional help to let the person, exceed or do better in that role. So, I think that really goes beyond the legal, into the business aspect of it.
Dan Schwartz: Alright, so let's move on to talk briefly about religious accommodations because there was a case about two years ago at the Supreme Court Groff v. DeJoy that I think really switched things up for religious accommodations. And I thought it was worth mentioning because a lot of the analysis now is a little closer to the ADA than it was.
So can you just briefly talk about why that decision was consequential for employers.
Keegan Drenosky: Sure. and when you said that was almost two years ago - I can't believe that. It doesn't seem like that long. But you're right. So, the case was Groff v. DeJoy, and Groff was a postal carrier for the USPS and held a sincerely held religious belief that he should not have to work on a Sunday.
The postmaster was, doing what they could to shift swapping shifts and coworkers began to voice concerns about that. So, it was causing some issues. Eventually he was assigned to some Sunday shifts and then was terminated when he failed to work on those dates due to his religion. And in that case, the lower court granted summary judgment because prior to this case, and in years of previous case law – the law had suggested that an employer didn't have to accommodate religious preferences if there was more than what they called a di minimis cost or hardship, which is different than undue hardship under the ADA. It was a much lower standard, but now in this case, the Supreme Court basically overturned that and determined that the standard under which employers should evaluate requests for accommodations is closer to that undue hardship.
They didn’t exactly evaluate it so there's a lot still unknown, about what this is going to look like. They didn't say it was under Title VII, you now have to show it's an undue hardship like you do under the ADA. But instead they said that an employer must show the burden of granting and accommodation would result in substantial increased costs in relation to the conduct of its particular business.
So, we think it's, we know it's at least more than de minimis and it's at least more than a hardship, but we don't really know exactly what that's going to look like, what we've seen so far. I think it is coming closer to an ADA type of analysis.
Dan Schwartz: Yeah. I think an employer still needs to show some harm to their business beyond like impacts to coworkers like the Postmaster was trying to show here, which as well is, was causing some disruption among coworkers. And I think the Supreme Court was not necessarily impressed with that excuse. But I think you're right. We still will need to see where these cases shake out and, that case was remanded for further discussion. So, are there some takeaways at least from that decision, that employers should be aware of?
Keegan Drenosky: Yeah, I think that the takeaway here is that when evaluating a request for a religious accommodation from an employee, really, you have to look at it on a case-by-case basis. Look at the, what the request is, the cost of it, as well as other factors to determine if there are, if their request is reasonable or really causes an undue burden on the company.
And, in this case, I doubt that allowing Groff not to work on Sundays, maybe that wasn't quite the burden that, that we thought at the time. So, I think it needs further evaluation.
Dan Schwartz: Yeah. If that was two years ago, the next topic I want to talk to you about, we'll show how time moves quickly. As I was prepping for this, it was hard to realize it was eight years ago that Connecticut changed its pregnancy accommodation law to really address accommodations for pregnancy, and that has been followed up, obviously, through federal law with the Pregnant Workers' Fairness Act as well. But where do things stand, at least in, in Connecticut and maybe federal with providing accommodations for pregnant workers?
Keegan Drenosky: So really, there's a num as you just mentioned, a number of different laws that apply to provide protection for pregnant workers. There is the ADA, which obviously can apply to someone who's pregnant because it could be a qualified disability in Connecticut. Since 2017, we've had a pregnancy accommodation law and guidance provided related to that law by the CHRO, the agency in Connecticut that deals with employment claims.
Basically, it says that pregnant workers are entitled to reasonable accommodations for pregnancy, childbirth, and related conditions. So, treating them like a qualified disability Under the ADA, they're entitled to things like reasonable leaves of absence due to a disability resulting from pregnancy, reasonable accommodations and leaves of absences for any pregnancy related condition or symptom. And pregnancy-related condition does include pregnancy loss. Workers are entitled to reasonable accommodations for lactation needs, and an employee may choose to keep medical diagnosis confidential. So, employers should not directly contact the employer's doctor without obtaining employee's permission.
So, I would say with respect to pregnancy in particular under both Connecticut and the pregnancy Fairness Workers Act, there's really some more protections in terms of the privacy right and contacting medical, requesting medical documentation, which employers should really be careful of doing. If the request is just for something simple like additional bathroom breaks, or additional time to take breaks throughout the day, because that's something that the federal law has said are presumptively, reasonable accommodations for someone that is pregnant.
Dan Schwartz: Yeah, that's a great point. And I think for employers, there are more resources on this, both at the EEOC website and the CHRO website with some frequently asked questions that I think we don't have time to cover here, but I think would be good for employers to think about. So, anything more that you wanna wrap up with on this?
Keegan Drenosky: I think just with respect to all of these laws and considering, what is a reasonable accommodation, really you need to be aware of what is the specific law. Is it someone asking because it's a pregnancy-related disability, and what do those laws say? Is it something under Title VII with the religion, or is it, does fall under the ADA and to be aware of state law as well, because different states require, different things as with pregnancy in Connecticut, we've had those protections for years before this federal law went into effect. So, it's important to check, I think, both places to see where does the request fall to go through the process and not just, make a decision without having that interactive back and forth and really just to, think about are there other things we can offer if we don't like what the person has requested, or we don't think we can do that.
Frequently I've seen the question of do we have to let everyone work remotely now because we have all these laws protecting people as a reasonable accommodation because we did that during Covid and that's still an issue as we see people going back into the office, and I think the answer is no, unless it's the really only reasonable accommodation and it makes sense in the particular circumstance. So, this is really like a case by case analysis. It's not, something we can just generalize with respect to the individual.
Dan Schwartz: Yeah. Great. Great point and I'll close with this. If you want more information, you want to think about what accommodations can be provided - there's a great website, it's been around forever, called Ask Jan - jan.org. It's a nonprofit site that, talks about a job accommodation network and really gives all sorts of ideas for accommodations and what accommodations work for disability. So, there's your extra tip for the day.
So, with that, Keegan, thanks again for joining us. And this will wrap up another episode of From Lawyer to Employer. As always, we love it if you would subscribe to the podcast wherever you get your podcasts. And if you want to leave us a comment either on those sites or you can send an email to me at dschwartz@goodwin.com.
We love to hear feedback on the podcast. If you have an idea, a topic that you would like to see covered we'd love that too. Thanks again for listening.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman and Goodwin, LLP.
All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, Apple Podcast, or wherever you listen. We hope you'll join us again.
We also have the notion of religious accommodations that come into play under Title VII, which is slightly different and we can talk a little bit more about that. But they've really developed along similar slightly different paths, but for purposes of the ADA, and then in Connecticut, we have state law prohibiting disability discrimination that has similar protections a person has to have. What that disability is defined and be a qualified disability under the law. So it's not just, anyone that says I have this medical issue, or I'm disabled. It has to be a qualified disability under the law.
Dan Schwartz: So let's assume for the sake of argument, 'cause we could do a whole podcast on what is or is not a disability, but someone has a disability, they're a qualified individual.
Where does the reasonable accommodation fit in, at least on the ADA context?
Keegan Drenosky: So, if someone you know has a qualified disability, the idea of a reasonable accommodation comes into play to be a modification or an adjustment to a person's job or the work environment, or really the way things are typically done, either during their employment or during the hiring process - that allows that person with the disability to have an equal opportunity, not just to get a job, but to successfully perform their job tasks and the essential functions of their role to the same extent as someone that doesn't have a disability. So the ADA specifically requires that reasonable accommodations as they relate to three different aspects of employment.
So, we have ensuring the equal opportunity in the application process. Enabling a qualified individual with a disability to perform the essential functions and we can talk more about what that is of the job. And making it possible for the employee with the disability to enjoy the equal benefits and privileges of employment.
So that's really what the law is concerned about with respect to people that have disabilities.
Dan Schwartz: And are there any like magic words an employee needs to use to request an accommodation?
Keegan Drenosky: There's really no magic words, and as you and I know from practice frequently, you don't have an employee that does use those magic words of, I need a reasonable accommodation for a disability.
Oftentimes it's informal. It's just a discussion between a supervisor and an employee or HR. They've reached out and asked for something they need and that really puts the employer, on alert that this person might need some type of accommodation and kicks off the process of going through this interactive back and forth regarding what the employee may need to be able to do the essential functions of their role.
Dan Schwartz: Yeah I think people often think if someone's blind, that'll be apparent that someone needs a reasonable accommodation. But I think as we've seen, accommodation can take all shapes and sizes and someone's disability may also not be apparent as well. So that's a really good point that you bring up.
So, you were just mentioning this sort of interactive process. What does that look like and how does that sort of fit into the accommodations notion?
Keegan Drenosky: Sure. A lot of times people hear that phrase and they think it has to be something very formalized with everything in written letters or, but it can really can be just an interactive, informal back and forth with the employer and the employee.
So, the employee may request the type of accommodation they think they need to be able to do the job. Say for instance, someone has ADHD and they need additional time on assignments. They might ask for that, and perhaps that's something the employer can give and says, no problem. And they set that up and then they evaluate if that's working to allow the person to do the job functions.
Maybe that's something the employer can't do because they really can't give additional time or, they need someone in a set schedule and they have to think about, is there some other accommodation that the employer can propose and is that acceptable to the employee? And that's this back and forth. At some point there may be a request for documentation from a doctor to help with that process to show what the employee really needs. We other examples are like, you have someone say with a back injury or they need a standing desk, things like that are a little bit easier than some of the ones we've seen lately, which have to do more with mental health or other things that people are requesting, but that's why the back and forth is important - because an employer might not be able to agree to something that the employee is asking because it's causing them a hardship and it's a little bit difficult for them to do, but they can propose something as well and have that discussion with the employee.
Dan Schwartz: So, you said something that I think is important for employers to think about, which is just because the employee requests a reasonable accommodation, the employer doesn't necessarily have to agree to that. If there's another accommodation that the employer can propose.
Keegan Drenosky: Yeah, that's correct. Even if it is a reasonable accommodation and that the employee has proposed, the employer can, say can we do this instead and work with the employee? Because in the eyes of the employer, they're looking to minimize disruption to other employees to allow this person to be on the same footing as those without a disability and do their job, but not necessarily to go above and beyond and give them something that would put them. In a position where they're looking to be even more successful. It really just, the point of this is to let them do the essential functions of their role. And so that's what the focus should be, and that's where the back-and-forth process is really important.
Dan Schwartz: Yeah. The other, another thing you mentioned was evaluating the effectiveness of an accommodation. So, I think sometimes employers think ‘ well, we tried one thing, it didn't work’. So that's the end of their obligations. But I think you were mentioning it, it goes a little bit further than that.
Keegan Drenosky: Yeah. So, if if accommodation is put into place and it's not working, that's certainly not the end of it. The employer has to look to see, is there something else we can do to allow the person to be able to do their job?
And it may ultimately be that there's not. But certainly, you have to go through that process before you would get to that end point where both the employee employer should at that point be on the same page to understand, I can't, there, there's really no accommodation that could be made here, but that's the end.
We need to go through the whole process first to make sure there's not something that could be done. And typically, I would say, when we see that happen, as if there's a job where an essential function involves heavy lifting, and it's really something that can't be changed to another role or taken out of the function of the job. Those are the more clear-cut ones, but a lot of jobs, especially ones in the office, don't necessarily fall into that easy or category of determining what's an accommodation that we can do and that we can't do.
Dan Schwartz: So typically I think you say, an employer doesn't have to get rid of essential functions of the job. They just need to provide accommodations if it can be reasonable to allow the employee to perform the essential functions of the job.
Keegan Drenosky: That's exactly right. And the tricky part with that comes into looking at what is really essential to a role. A lot of times an employer's job descriptions will come into that if you end up, in litigation over an issue like this.
So, I always urge employers to make sure that those things that are very essential to the job are in the description. So, there can't really be a question later about that being part of the role.
Dan Schwartz: Are there limits to accommodations that employers should be aware of?
Keegan Drenosky: Yeah, absolutely. And we get this question a lot, especially as more employees want to either go on leave or work remotely as an accommodation.
Really, if something is an undue hardship to an employer, they don't need to provide that accommodation. And that doesn't just mean in the sense of, monetary, there's not a limit on what amount of money it costs someone to provide that would make it, per se, an undue hardship. It's really looking at sort of the totality of the circumstances in the case-by-case basis.
Also, if something was causing a direct threat to other employees, which we saw when we were back in the world of dealing with vaccines and accommodations related to vaccine requirements. So those are the two of the limits that we have under the law that, go into what does an employer actually have to provide.
Dan Schwartz: Yeah, your point on it, not necessarily being related to costs is a good one to keep in mind. I know we've had questions where someone's working remotely, but the performance is really suffering, and the employer asks can we require them to come in person? Because it's not really working. And I think there you can change up the accommodations to really address the performance issues, because ultimately you need to get the employee to perform. So, one more question before we switch gears on that, which is, let's suppose a person's doing fine in their job. They're, meeting satisfactory expectations of the essential functions of the job, but they say, ‘you know, I'd like an accommodation which would allow me to do the job better and really be a premier performer’, and I know there are exceptions and everything's going to be a little case by case specific, but in general, does an employer need to provide an accommodation in that instance?
Keegan Drenosky: So, I would say in general, no, because really the purpose of the law is to allow the employee, again, to perform those essential functions, not to be, the star performer, just to meet the expectations of their role and do those job functions.
As a practical matter I think that's going to be more of a business decision on what the person's asking for and really is that going to help the employer as well, giving that additional help to let the person, exceed or do better in that role. So, I think that really goes beyond the legal, into the business aspect of it.
Dan Schwartz: Alright, so let's move on to talk briefly about religious accommodations because there was a case about two years ago at the Supreme Court Groff v. DeJoy that I think really switched things up for religious accommodations. And I thought it was worth mentioning because a lot of the analysis now is a little closer to the ADA than it was.
So can you just briefly talk about why that decision was consequential for employers.
Keegan Drenosky: Sure. and when you said that was almost two years ago - I can't believe that. It doesn't seem like that long. But you're right. So, the case was Groff v. DeJoy, and Groff was a postal carrier for the USPS and held a sincerely held religious belief that he should not have to work on a Sunday.
The postmaster was, doing what they could to shift swapping shifts and coworkers began to voice concerns about that. So, it was causing some issues. Eventually he was assigned to some Sunday shifts and then was terminated when he failed to work on those dates due to his religion. And in that case, the lower court granted summary judgment because prior to this case, and in years of previous case law – the law had suggested that an employer didn't have to accommodate religious preferences if there was more than what they called a di minimis cost or hardship, which is different than undue hardship under the ADA. It was a much lower standard, but now in this case, the Supreme Court basically overturned that and determined that the standard under which employers should evaluate requests for accommodations is closer to that undue hardship.
They didn’t exactly evaluate it so there's a lot still unknown, about what this is going to look like. They didn't say it was under Title VII, you now have to show it's an undue hardship like you do under the ADA. But instead they said that an employer must show the burden of granting and accommodation would result in substantial increased costs in relation to the conduct of its particular business.
So, we think it's, we know it's at least more than de minimis and it's at least more than a hardship, but we don't really know exactly what that's going to look like, what we've seen so far. I think it is coming closer to an ADA type of analysis.
Dan Schwartz: Yeah. I think an employer still needs to show some harm to their business beyond like impacts to coworkers like the Postmaster was trying to show here, which as well is, was causing some disruption among coworkers. And I think the Supreme Court was not necessarily impressed with that excuse. But I think you're right. We still will need to see where these cases shake out and, that case was remanded for further discussion. So, are there some takeaways at least from that decision, that employers should be aware of?
Keegan Drenosky: Yeah, I think that the takeaway here is that when evaluating a request for a religious accommodation from an employee, really, you have to look at it on a case-by-case basis. Look at the, what the request is, the cost of it, as well as other factors to determine if there are, if their request is reasonable or really causes an undue burden on the company.
And, in this case, I doubt that allowing Groff not to work on Sundays, maybe that wasn't quite the burden that, that we thought at the time. So, I think it needs further evaluation.
Dan Schwartz: Yeah. If that was two years ago, the next topic I want to talk to you about, we'll show how time moves quickly. As I was prepping for this, it was hard to realize it was eight years ago that Connecticut changed its pregnancy accommodation law to really address accommodations for pregnancy, and that has been followed up, obviously, through federal law with the Pregnant Workers' Fairness Act as well. But where do things stand, at least in, in Connecticut and maybe federal with providing accommodations for pregnant workers?
Keegan Drenosky: So really, there's a num as you just mentioned, a number of different laws that apply to provide protection for pregnant workers. There is the ADA, which obviously can apply to someone who's pregnant because it could be a qualified disability in Connecticut. Since 2017, we've had a pregnancy accommodation law and guidance provided related to that law by the CHRO, the agency in Connecticut that deals with employment claims.
Basically, it says that pregnant workers are entitled to reasonable accommodations for pregnancy, childbirth, and related conditions. So, treating them like a qualified disability Under the ADA, they're entitled to things like reasonable leaves of absence due to a disability resulting from pregnancy, reasonable accommodations and leaves of absences for any pregnancy related condition or symptom. And pregnancy-related condition does include pregnancy loss. Workers are entitled to reasonable accommodations for lactation needs, and an employee may choose to keep medical diagnosis confidential. So, employers should not directly contact the employer's doctor without obtaining employee's permission.
So, I would say with respect to pregnancy in particular under both Connecticut and the pregnancy Fairness Workers Act, there's really some more protections in terms of the privacy right and contacting medical, requesting medical documentation, which employers should really be careful of doing. If the request is just for something simple like additional bathroom breaks, or additional time to take breaks throughout the day, because that's something that the federal law has said are presumptively, reasonable accommodations for someone that is pregnant.
Dan Schwartz: Yeah, that's a great point. And I think for employers, there are more resources on this, both at the EEOC website and the CHRO website with some frequently asked questions that I think we don't have time to cover here, but I think would be good for employers to think about. So, anything more that you wanna wrap up with on this?
Keegan Drenosky: I think just with respect to all of these laws and considering, what is a reasonable accommodation, really you need to be aware of what is the specific law. Is it someone asking because it's a pregnancy-related disability, and what do those laws say? Is it something under Title VII with the religion, or is it, does fall under the ADA and to be aware of state law as well, because different states require, different things as with pregnancy in Connecticut, we've had those protections for years before this federal law went into effect. So, it's important to check, I think, both places to see where does the request fall to go through the process and not just, make a decision without having that interactive back and forth and really just to, think about are there other things we can offer if we don't like what the person has requested, or we don't think we can do that.
Frequently I've seen the question of do we have to let everyone work remotely now because we have all these laws protecting people as a reasonable accommodation because we did that during Covid and that's still an issue as we see people going back into the office, and I think the answer is no, unless it's the really only reasonable accommodation and it makes sense in the particular circumstance. So, this is really like a case by case analysis. It's not, something we can just generalize with respect to the individual.
Dan Schwartz: Yeah. Great. Great point and I'll close with this. If you want more information, you want to think about what accommodations can be provided - there's a great website, it's been around forever, called Ask Jan - jan.org. It's a nonprofit site that, talks about a job accommodation network and really gives all sorts of ideas for accommodations and what accommodations work for disability. So, there's your extra tip for the day.
So, with that, Keegan, thanks again for joining us. And this will wrap up another episode of From Lawyer to Employer. As always, we love it if you would subscribe to the podcast wherever you get your podcasts. And if you want to leave us a comment either on those sites or you can send an email to me at dschwartz@goodwin.com.
We love to hear feedback on the podcast. If you have an idea, a topic that you would like to see covered we'd love that too. Thanks again for listening.
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