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Family & Medical Leave Act (FMLA)Americans with Disabilities ActPregnancyFeaturedJanuary 29, 2016by Stanton Law“Pregnancy Accommodation: Avoiding the Workplace Baby Blues”

An employee tells you she is pregnant. After the initial rush of happiness and congratulations, is there anything else to consider? “No problem,” you say, “she’ll work as usual. If she needs time off for a doctor’s appointment, no big deal. When she’s on maternity leave, we’ll hire a temp.” But what happens if she is unable to perform her usual job functions due to her pregnancy? What happens if she needs light-duty? Do you know whether you should accommodate her?

Just last year, the United State Supreme Court issued its decision in Young v. United Parcel Service to addresses to what extent employers must accommodate pregnant workers under the Federal Pregnancy Discrimination Act (PDA). The PDA requires that employers treat “women affected by pregnancy, childbirth, or related medical conditions [. . .] the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work….” It is on this clause the Supreme Court focused its decision and provided new guidelines.

An employee may show that she has been intentionally discriminated against by demonstrating that the employer’s policies impose a “significant burden” on pregnant workers and that the employer has not raised a “sufficiently strong” reason to justify that burden. A “significant burden” may be shown if an employer accommodates temporary disabilities for a large percentage of non-pregnant employees, such as providing them light-duty while injured, while not accommodating a large percentage of pregnant employees. If an employer does this, they must have a “sufficiently strong” reason for the disparity. Although the Court did not say what justifications may be “sufficiently strong,” it did say that simply claiming that accommodating pregnant employees is more expensive or less convenient will likely not be satisfactory. Therefore, employers must closely examine their accommodation policies and reconsider any exclusion of pregnant employees from those policies, especially if the only justification is cost or convenience. Consult with counsel if you have any questions or concerns about your current policies or need to create policies to ensure legal compliance. In the meantime:

Avoid the following mistakes:

  • Do not inquire or comment on an employee’s family planning decisions. This includes interview questions prior to employment or seemingly innocent comments by supervisors or managers that may appear to be casual conversation (e.g. – “So, now that you’re married, will you be having children?”).
  • Do not unilaterally reassign a pregnant employee’s job duties or place her on leave if she is able to safely perform her job, even if you are simply trying to be helpful. Do not make comments about an employee’s physical appearance or about the potential burdens you may experience as an employer due to her upcoming maternity leave. This could be construed as intolerance or negativity toward the pregnant employee.

Take the following steps:

  • Examine your workplace policies – such as accommodation, leave, scheduling, and attendance – to ensure compliance with federal laws such as the Pregnancy Discrimination Act, Americans with Disabilities Act, and any state anti-discrimination or pregnancy statutes. Make sure they are legally compliant before a potential problem arises so that you may avoid serious legal implications.
  • Examine your light duty policies. If you would accommodate the restriction for a non-pregnant injured or disabled employee, you should do the same for a pregnant employee.
  • Establish procedures for determining what accommodations are necessary and appropriate.
  • Train your supervisors about how to recognize and respond to a pregnant employees’ need for accommodation.

As an employer, your company’s failure to meet its obligations under the PDA may be extremely costly. Accommodating a pregnant employee is temporary and usually inexpensive. The safest course is to review your policies, train your supervisors, and make sure your company is legally compliant before any issues arise.

Employers, moreover, must also understand that the PDA is not the only law that requires special consideration for pregnant employees and that certain accommodations may extend beyond the actual pregnancy. For instance, even though pregnancy is not in and of itself a “disability,” the 2008 Amendments to the Americans with Disabilities Act requires employers to provide accommodation for pregnancy-related medical conditions that meet the definition of “disability.” Other laws such as the Family Medical Leave Act (FMLA) and Health Insurance Portability and Accountability Act (HIPAA) also protect pregnant employees from certain adverse employment actions. A post-partum condition may be “pregnancy related” and protected under the PDA. Also, the Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for hourly employees to express breast milk until the child is one year old.  The matrix of employee and employer rights and obligations under these various laws is beyond the scope of this article, but further discussion of these laws and employer requirements for accommodation will be addressed in future articles.