We recently received a novel question from a client faced with an employee request for a workplace accommodation. The employee had recently given birth, and while on leave requested that she be allowed to work remotely for a year following delivery. Although the notice did not specify the reasoning behind the request, the employee had expressed concerns over childcare arrangements as well as her desire to stay home with the child for an extended period after birth.

The employer had recently implemented a return to the office policy, and even though the employee’s work could plausibly be accomplished remotely, the company denied the request. The employee then provided a note from her physician stating that she was having issues with breastfeeding and including the doctor’s recommendation that she work from home for one year. The employer contacted us to ask whether they are legally obligated to agree to this accommodation.

In prior years, this would have been a fairly straightforward analysis. The breastfeeding issues did not appear to rise to the level of an Americans with Disability (ADA) disability, and neither the mother or the child had a serious health condition that would mandate leave under the Family and Medical Leave Act (FMLA). However, regulations issued under the Pregnant Workers Fairness Act (PWFA) complicated our response. The PWFA’s definition of protected conditions extends to post-partum issues such as breastfeeding (these rules are currently under legal challenge, but those challenges do not focus on post-partum accommodation requirements). While the rules state that accommodation requirements for such conditions are not permanent, they do not set a specific time limit on the employer’s accommodation obligations.

In this situation, the employer decided to allow an extended period of remote work, although not the full year requested by the employee. The company also notified the employee that upon her return to the office, it would provide time and a suitable space for her to express breastmilk at work, and would even allow the child to be brought to the office if expressing was not possible.

While this compromise avoided any legal claim, this situation raises the possibility that employees could use the PWFA’s accommodation requirement to request an extended period of remote work following childbirth. While such request would need to be medically based, assuming that the employee can provide such certification, employers could be hard pressed to simply deny the accommodation even if they believe that the employee has mixed motivations for seeking to work from home.

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