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UNM Policy Office

MSC05 3357
1 University of New Mexico
Albuquerque, NM 87131

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Phone: (505) 277-2069

Administrative Policies and Procedures Manual - Policy 2760: Pregnancy or Related Conditions (Interim)

Date Originally Issued: 08-01-2024

Authorized by RPM 2.3 (“Equal Opportunity and Affirmative Action for Employees and Students”)

Process Owner:  Chief Compliance Officer

2024 Interim Policy Introduction

Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination based on sex in education programs or activities that receive Federal financial assistance.  In 2024, the U.S. Department of Education issued new regulations that prohibit discrimination on the basis of sex, including pregnancy and parental status, wherein pregnancy and related conditions includes childbirth, false pregnancy, termination of pregnancy, lactation, or recovery therefrom.  The new Title IX regulations apply to current students, applicants for employment and employees of UNM.  In addition, the Pregnant Workers Fairness Act (“PWFA”) was passed in 2023 to enhance the protections available under Title VII of the Civil Rights Act of 1965, the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act of 1990 to ensure pregnant workers receive the accommodations they need in the workplace. In 2024, the EEOC released final regulations regarding the PWFA.  The purpose of this interim policy is to recognize the protections these laws provide to students and employees and incorporate such protections and obligations into University policy on an expedited basis.

1. Non-Discrimination Statement

The University of New Mexico (UNM) does not discriminate in its education programs or activities against any applicant for admission, student, applicant for employment, or employee on the basis of current, potential, or past pregnancy or related conditions. This policy applies to all pregnant persons, regardless of gender identity or expression.  UNM is committed to creating an accessible and inclusive environment for its students and employees who are pregnant, parenting or experiencing pregnancy-related conditions.

Pursuant to Title IX, UNM will treat employees that are pregnant or experiencing pregnancy-related conditions, including any temporary disability resulting therefrom, the same as it treats any other temporary disability for all job-related purposes. 

Failure to provide a reasonable accommodation to an employee or job applicant, or a reasonable modification to a student, who is pregnant, parenting or experiencing pregnancy-related conditions may constitute sex discrimination. Individuals seeking to file a claim asserting UNM’s failure to provide a reasonable modification or accommodation in the academic and/or work environments or educational programs or activities, should contact the UNM Office of Compliance, Ethics and Equal Opportunity (the “CEEO”).

2. Definitions

Essential Functions (employees only): Fundamental (as opposed to marginal) duties of the job the individual applies for or holds.

Essential Skills (students only): Fundamental (as opposed to marginal) requirements of a course, degree, or program.

Parental Status (students or employees):  Under Title IX, this means a person who, with respect to a person under the age of 18 or who is 18 or older but incapable of self-care due to a physical or mental disability, is 1) a biological, adoptive, or foster parent; 2) a stepparent; 3) a legal custodian or guardian; 4) in loco parentis with respect to such other person; or 5) actively seeking legal custody, guardianship, visitation, or adoption of such person.   

Pregnancy and Related Conditions (students or employees): Under Title IX, this means pregnancy, childbirth, termination of pregnancy, or lactation; medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.

Pregnancy, Childbirth, or Related Medical Conditions (employees):  Under the PWFA, pregnancy and childbirth refer to the pregnancy or childbirth of the specific employee, including the current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility and use of contraception), labor and childbirth.  Related Medical Conditions are medical conditions that relate to the pregnancy or childbirth of the specific employee, including termination of pregnancy, complications arising from  pregnancy, and lactation.

Qualified Employee (employees only):  For purposes of this policy, with respect to an employee with a known limitation under the PWFA means:

  1. an employee or job applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position; or
  2. an employee or job applicant who cannot perform one or more essential functions if:
  • the inability to perform any essential function(s) is temporary;
  • the essential function(s) could be performed in the near future; and
  • the inability to perform the essential function(s) can be reasonably accommodated.

Reasonable Modifications (students)[1]: For purposes of this policy, reasonable modifications are individualized modification for current students to the University’s policies, practices, or procedures by which barriers to education are removed or alleviated. Reasonable modifications do not fundamentally alter the University’s education program or activity. A modification must be effective in meeting the student needs meaning that it removes or mitigates the impact of the education barrier.  

Reasonable Accommodations (employees):  For purposes of this policy, means modifications or adjustments to the job application or work environment that enables a qualified employee to perform the essential functions of the job they hold or applied for or the temporary suspension of essential function(s).  It also includes modifications or adjustments that enable a qualified employee to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without known limitations.  

3. Information Sharing Requirements (Students)

When a student discloses their pregnancy or related conditions to any University employee, that employee must provide the student with the Title IX Coordinator’s contact information and inform the student of the University’s obligations to:

  • Prohibit sex discrimination
  • Provide reasonable modifications, if needed
  • Maintain a resolution process for alleged discrimination
  • Treat pregnancy and related conditions as comparable to other temporary medical conditions.

This information can be found in the UNM Pregnancy Manual accessible at Compliance, Ethics & Equal Opportunity.  Faculty should not request medical documentation from any pregnant or parenting student without consulting beforehand with the CEEO. 

4. Reasonable Modification or Reasonable Accommodation

Current students may seek a reasonable modification by contacting CEEO or by asking the faculty member directly impacted by the requested modification.  The University is not required to make a modification that it can demonstrate would fundamentally alter the nature of the its education program or activity. UNM must make only such reasonable modifications as necessary to prevent sex discrimination and ensure equal access to the student’s education program or activity based on the student’s individualized needs.

Prospective students may seek a reasonable accommodation by contacting CEEO.

Prospective or current employees may seek a reasonable accommodation by contacting CEEO or by asking their supervisor directly.  

The consideration of a request for a reasonable accommodation or reasonable modification requires an interactive process with the requestor and the University.  For more information about this interactive process refer to Compliance, Ethics & Equal Opportunity.

4.1 Documentation Needed

Students may be required to provide documentation when seeking a Reasonable Modification when necessary and reasonable for the University to determine what actions to take under the circumstances.  For example, if all students are required to provide documentation to excuse an absence in a particular educational program or activity, then documentation may be required from a pregnant student.  For purposes of this policy, licensed healthcare providers need to indicate that the leave requested is medically necessary and pregnancy related.  UNM personnel requiring the documentation should not question the medical necessity of the absence.  If a medical release is required for students to participate in an educational program or activity[2], it may be required of pregnant students so long as it is not considered discriminatory under other applicable laws.  Under Title IX, UNM may not require documentation of students when:

  • The need is obvious
  • The information requested is only to confirm pregnancy
  • Other students are allowed the same modification without submitting documentation
  • The modification is for a pregnant student or a student experiencing pregnancy-related conditions to:
    • Carry water or keep water nearby
    • Take breaks to eat, drink or use the restroom
    • Access a bigger desk
    • Sit or stand
    • Access lactation breaks and space.

Under the PWFA, employers may only request documentation to support a request for a reasonable accommodation when it is reasonable under the circumstances.  If complications due to pregnancy or related conditions rises to the level of a disability, medical documentation may be required to support a request for a reasonable accommodation.   

Under the PWFA, medical documentation is not generally required of employees requesting an accommodation when:

  • the limitation and need for a reasonable accommodation are obvious,
  • the employer already has sufficient information to support a known limitation related to pregnancy,
  • the request is for one of the following four accommodations that will be considered reasonable in most situations[3]:
    • additional restroom breaks, as needed;
    • food and drink breaks, as needed;
    • having beverages readily available; and
    • allowing an employee whose work requires standing to sit and vice versa, as needed
  • the request is for a lactation accommodation. 

5. Interactive Process

Requests for modifications and accommodations require that supervisors and employees (current and prospective) and faculty and students (current or prospective) engage in an interactive process to determine if an accommodation or modification request is reasonable. The interactive process involves informal and collaborative communication. While this process may take place without the involvement of CEEO, students and employees are welcome to work directly with the CEEO.

Faculty should openly communicate with the pregnant individual to understand their specific needs and offer reasonable modifications aligned with their situation. If an agreement is reached, the faculty must complete and send the Pregnancy/Lactation Modification Agreement to the Title IX Coordinator for documentation.

Supervisors should openly communicate with the employee or prospective employee to understand their specific needs and offer reasonable accommodations aligned with their situation.  The supervisor must complete and send the Pregnancy/Lactation Accommodation agreement to the Title IX Coordinator for documentation.

If an agreement cannot be reached with the student’s instructor or an employee’s supervisor, the pregnant individual may contact CEEO for assistance with the interactive process. A supervisor or faculty member should not deny a modification request related to pregnancy or lactation without first consulting with CEEO

6. Reasonable Modifications for Students

Some examples of Reasonable Modifications under this policy may include:

  • Breaks during class for health needs
  • Intermittent absences for medical appointments
  • Access to online or homebound education
  • Changes in schedule or course sequence
  • Time extensions for coursework and rescheduling of tests and examinations
  • Allowing a student to sit or stand or keep water nearby
  • Counseling
  • Modifications to physical space or supplies
  • Elevator access
  • Temporary leaves of absence (see below)
  • Other changes to policies, practices or procedures identified by the student

Students are permitted to take a voluntary leave of absence for a reasonable time as deemed medically necessary by their licensed healthcare provider due to pregnancy and/or the birth, adoption, or placement of a child. If a leave of absence is deemed medically necessary, the student is encouraged to consult with CEEO as early as practical. 

Students may contact the CEEO to discuss appropriate and available modifications based on their individual needs.

7. Reasonable Accommodations for Employees

Depending on the nature of the employee’s employment, some examples of Reasonable Accommodations under this policy may include:

  • Additional breaks during the workday
  • Intermittent absences for medical appointments
  • Remote work
  • Changes to physical space or supplies
  • Larger uniforms of required clothing
  • Temporary leaves of absence
  • Temporarily suspending one or more essential functions of the position
  • Parking accommodations, if employee is otherwise entitled to use employer-provided parking
  • Other similar accommodations for employees with known limitations

Employees may request leave from  their supervisor, directly to Human Resources or via their applicable academic affairs processes. This policy does not supersede the University’s paid parental leave policy set forth in UAP 3215: Leave with Pay.

8. Modification and Accommodation Decisions

If an agreement cannot be reached as to a request for a Reasonable Modification or Reasonable Accommodation between a student and faculty member or supervisor and employee, respectively, the Title IX Coordinator within CEEO, or their designee, shall make the final decision as to the reasonableness of the modification or accommodation. The determination of the Title IX Coordinator is final.  An alleged failure to provide a reasonable modification or reasonable accommodation may be addressed by the student or employee via the CEEO.

9. Certification to Participate (Students only)

The University may only seek medical certification of a student’s physical or emotional ability to participate in its education program or activity, including any class or extracurricular activity, if UNM requires such certification of all students participating in such program or activity.

10. Lactation Space Access

The University provides students and employees with access to lactation spaces for pumping or nursing that are functional, appropriate, and safe. Such spaces are regularly cleaned, shielded from view, and free from intrusion. Information related to lactation spaces are located on the Women’s Resource Center website at https://women.unm.edu/services/lactation-stations.html.

11. CEEO Contact Information

Requests to the CEEO should be directed to:

UNM Compliance, Ethics and Equal Opportunity
Phone:  505-277-5251
Email: ceeo@unm.edu
 

12. References

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

The Pregnancy Discrimination Act of 1978, 42 U.S.C. §§ 2000e (PDA)

The Providing Urgent Maternal Protections for Nursing Mothers Act of 2022, 29 U.S.C. § 218d (PUMP Act)

The Pregnant Workers Fairness Act (PWFA), effective Jun 27, 2023

The New Mexico Pregnant Worker Accommodation Act of 2020 (PWA), NMSA 1978, § 28-1-7 (incorporated into the New Mexico Human Rights Act).

UAP 2310:  Reasonable Accommodation for Students with Disabilities

UAP 3410:  Sick Leave

UAP 3415:  Leave with Pay

UAP 3440:  Family and Medical Leave

FHB Policy C210:  Sick Leave

FHB Policy C215: Parental Leave

FHB Policy C245:  Faculty Absence from Assigned Duties

FHB Policy C280: Leave Without Pay

 

[1] For purposes of this policy, a Reasonable Modification is different than a reasonable accommodation provided under UAP 2310:  Reasonable Accommodation for Students with Disabilities.  If a student’s condition related to pregnancy arises to the level of a disability, UAP 2310 may be an alternative source for a modification or accommodation.

[2] Certifications regarding a student’s emotional ability to participate in an educational program or activity should not be requested without prior consultation with the CEEO.

[3] While these accommodations will be considered reasonable in most situation, such requests are not reasonable per se and are still subject to an individualized assessment as to whether they cause an undue hardship and may be denied.