Legal approaches to pregnancy in the workplace

Inside Counsel

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The legal landscape for pregnancy in the workplace is well-established but still evolving

The Obama Administration has made it clear that it wants to increase protections for pregnant employees. There is also significant discussion in the media about family-friendly workplaces. Against this backdrop, employers, rightly, want to ensure they are handling the matter properly. This series of articles will address specific issues that arise with pregnant employees and the legal pitfalls employers need to avoid.

The legal landscape is well-established but still evoloving. Title VII of the Civil Rights Act of 1964 prohibits discrimination against any person because of their sex. In 1972, Congress amended Title VII and passed the Pregnancy Discrimination Act (PDA), making clear that discrimination on the basis of pregnancy is discrimination on the basis of sex. In the wake of the PDA came workplace policies ensuring that employees who needed time off for pregnancy are treated the same as employees who require leave for other medical reasons, like back surgery or to recover from a heart attack. In theory, the PDA did not give pregnant employees special rights — only the same rights as their coworkers.

In recent years, however, the legal landscape has shifted, and pregnancy appears to have become a preferred class in some instances. This raises several key questions for employers. If an employer offers limited medical leave to employees or only allows them to take available sick or vacation time, can it provide such limited leave to its pregnant employees? Can employers, therefore, truly treat pregnant employees just like everyone else or, in today’s climate, must they give pregnant employees more options? May an employer have leave that is only available to pregnant employees? May employers provide light duty assignments only to employees injured on the job or must they offer those assignments to pregnant employees who have restrictions? The United States Supreme Court is currently considering this issue in the case Young v. UPS, and the Equal Employment Opportunity Commission’s 2014 Enforcement Guidance on Pregnancy Discrimination makes clear that the Commission does not believe the “light duty for on the job injuries only” policy is acceptable.

There are other federal laws to consider in addition to the PDA that raise their own questions for employers. The Family and Medical Leave Act (FMLA), for example, provides that covered employers (i.e., those with 50 or more employees) must give eligible employees up to 12 weeks of unpaid leave for their own serious health conditions or the birth of a child. Not only does the FMLA require an employer to provide leave following the child’s birth, it also covers a pregnant employee’s absences due to morning sickness or prenatal doctor visits or bedrest. How should an employer be documenting the intermittent leave associated with a pregnant employee? Does an expectant father get protected time off for prenatal visits? What should you do when a newborn has its own serious health condition? What should an employer do when an employee has used up much if not all of the 12 weeks before the child’s birth? How should covered employers address pregnancy related time off for employees in locations that do not have 50 or more employees within 75 miles?

For those employers who do not yet have 50 employees, their obligations fall under the Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees. The ADA requires that employees with a disability be provided a reasonable accommodation to enable them to perform the essential functions of their jobs. Although the ADA was not initially thought to apply to pregnancy in general (given that pregnancy is not an impairment but how a woman’s body is designed to work in certain circumstances), the passing of the Americans with Disabilities Act Amendments Act (ADAAA) expanded the definition of disability to cover nearly any impairment, including those related to a normal, healthy pregnancy.

In such cases, the employer must assess a pregnant employee’s request for accommodation, including leave, not on the basis of how it treats other non-pregnant employees but whether the requested accommodation is reasonable or would pose an undue hardship. Can and should an employer talk with the employee’s treating physician about appropriate accommodations? Given the temporary nature of pregnancy restrictions, must an employer transfer a pregnant employee to a vacant position to accommodate restrictions? Can the employer reduce her pay if the vacant position is at a lower rate? Must the employer return her to her original job after she returns from maternity leave? If the employee is not eligible for FMLA leave, what obligations does an employer have with regard to maintaining health insurance coverage? What factors should employers consider when determining whether it is a reasonable accommodation to give the employee additional time off after FMLA leave is exhausted?

In the next several weeks we will answer these and other questions under the federal laws and guidance.

Republished with permission. This article first appeared in Inside Counsel on March 10, 2015.