Last month the EEOC published new enforcement guidance on the application of federal laws prohibiting discrimination to pregnant employees in the workplace. The agency takes the position that employers must reasonably accommodate certain temporary impairments arising out of pregnancy that may be considered “disabilities” under the Americans with Disabilities Act. It further states that a failure to make such accommodation implicates not only the ADA, but may also violate Title VII under the Pregnancy Discrimination Act (PDA) if employers accommodate non-pregnant employees subject to limitations similar to those affecting pregnant employees.

While the guidance acknowledges that pregnancy is not an impairment and thus not a disability for ADA purposes in and of itself, it posits that some pregnancy-related impairments may be covered by the ADA if they substantially limit a major life activity (which also include major bodily functions, organs, or body systems). The agency urges employers not to engage in extensive analysis of whether an impairment is a covered disability, though, and instead concentrate on making reasonable accommodations.

A variety of examples are offered to illustrate potentially covered conditions affecting pregnant employees both before and after birth, ranging from anemia and gestational diabetes to carpal tunnel and swollen legs. The guidance also offers a number of examples of reasonable accommodations, like assigning occasional lifting duties to a non-pregnant employee and providing a stool for relief from standing. Notably included is allowing unpaid leave for bed rest to an employee who exhausts her accrued sick time and who is not yet eligible for FMLA – This illustration has potentially major implications for ADA-covered employers either not covered by FMLA or with ineligible employees to permit extended leave without clear guidance on how it might reasonably be administered.

While employers are encouraged to approach reasonable accommodation openly, care should be exercised that modifications to a pregnant employee’s job designed to allow her to perform it do not inadvertently limit job opportunities. Unless requested, accommodations that might exclude an employee from a job or assignment because of pregnancy (even where intended to help the employee) may be interpreted as discriminatory under Title VII.

This new guidance comes on the eve of the Supreme Court’s consideration of the issue in an upcoming case, which many believe is no coincidence. Until that decision issues, though, employers should be aware of the EEOC’s emphasis of pregnancy-related issues as a new enforcement priority and seek advice as they consider policies and situations involving pregnant employees.