Managing a pregnant employee can be one of the most challenging aspects of employee management for employers and HR. While it is generally well known that it is unlawful to discriminate against a worker based on pregnancy, childbirth or related medical conditions, an employer and/or supervisor often finds himself or herself in a tricky position when it comes to providing the same workers with reasonable accommodations.
At the federal level, an employer may be required to provide reasonable accommodations if:
• The employee suffers from a pregnancy-related disability under the Americans with Disabilities Act (ADA); and
• There is no undue hardship (significant difficulty or expense) for the employer.
However, the federal Pregnancy Discrimination Act does not explicitly require an employer to provide pregnant employees with reasonable accommodations.
The law at the state and municipal level is more complicated as approximately 18 states (such as California, Illinois, Maryland, New York, Utah) and some cities (including New York City and Philadelphia) have passed laws specifically requiring employers to provide reasonable accommodations to pregnant employees. Further, bills are rapidly advancing in New Mexico, South Carolina, Vermont and Washington.
Employers may use the following general guidelines when considering whether to provide pregnant workers with reasonable accommodations:
Medical Conditions Related to Pregnancy May Constitute a Disability
While pregnancy itself is not explicitly defined as a disability under the ADA, pregnancy-related impairments (even if occurring during the course of a healthy pregnancy and, therefore, temporary), may qualify as disabilities under the ADA and lead to a reasonable accommodation. Very often such conditions will impose work-related restrictions that will substantially limit the employee in performing a major life activity (e.g., walking, standing, lifting or use of major bodily functions).
Some conditions that may constitute a disability under the ADA include:
• Back pain, leg pain and pregnancy-related sciatica;
• Preeclampsia, gestational diabetes and high blood pressure;
• Complications requiring bed rest; and
• Postpartum depression.
Accommodations Come in Various Forms
Reasonable accommodations can vary in type and duration. Accommodations may include:
• Redistributing marginal or nonessential functions, such as lifting or bending that a pregnant worker may not be able to perform;
• Altering how a nonessential or marginal function is performed;
• Modifying workplace policies (permitting longer breaks or allowing water on the factory floor, where drinks are usually prohibited);
• Modifying work schedules;
• Permitting an employee on bedrest to telecommute;
• Providing additional leave;
• Allowing the employee to use equipment that will assist them in performing the essential functions of their position (i.e., a stool to sit on); or
• Temporary reassignment to a light-duty position.
Engage in the Interactive Process
If an employee suffers from a pregnancy-related disability, once the employee notifies the employer that she requires an accommodation, the employer must engage in the interactive process. This involves a good-faith dialogue with the employee to discuss the requested accommodation, and to evaluate whether the employer can provide it.
The employer is entitled to ask for additional information, including certification from the employee’s doctor that supports a need for the accommodation. It is critical for an employer to take all pregnancy-related accommodation requests seriously in order to reduce the risk of a complaint or a lawsuit.
Treat Pregnant Employees the Same as Other Temporarily Disabled Workers
If an employee suffers from a temporary medical condition related to pregnancy or childbirth that affects her ability to perform her job duties and responsibilities, an employer is required to treat the employee in the same manner as it treats any other employee who also suffers from a temporary disability. This extends to:
• Light duty;
• Alternative assignments;
• Disability leave; or
• Unpaid leave.
Employers should evaluate all policies regarding accommodations and light duty, and consider how those policies affect and are applied to pregnant workers.
Be Careful with Safety Risks
An employer should avoid imposing on pregnant employees its own paternalistic notions regarding safety during pregnancy.
Retailer Rooms to Go recently settled an EEOC lawsuit regarding its termination of a new hire (who was pregnant at the time). The new position required the female employee to clean furniture with chemicals that included a warning stating that the contents would pose a risk to a pregnant woman or her unborn child.
While the employer may have terminated the employee out of a desire to protect her, under the law, an employer may not discharge pregnant employees or refuse to hire them even if their jobs expose them to safety hazards and increased risks. An EEOC attorney stated, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume…If there may be a potential health concern, it is up to the woman and her doctors to evaluate.”
Thus, supervisors should be trained to avoid unilaterally modifying a pregnant employee’s job duties based on health and safety concerns, and should not assume that certain restrictions are required based on pregnancy.
Reassignment Is Not Automatic
While an employer may consider reassigning an employee with a pregnancy-related disability to an open position as a reasonable accommodation under the ADA, a pregnant employee may not be entitled to automatic, preferential reassignment.
An employer may lawfully maintain a policy that states that the best qualified applicant or employee will be chosen for an open position. Therefore, a pregnant employee may be required to compete with others for the reassignment.
Pregnant Employees May Be Entitled to Leave Under Various Laws
While leave may be considered a reasonable accommodation under the ADA, the option is not guaranteed for pregnant workers. This is particularly true if an employer does not provide leave for other temporary disabilities.
However, a pregnant employee may be entitled to leave under laws other than the ADA, including:
• The federal Family and Medical Leave Act;
• State family and medical leave acts;
• State pregnancy disability leave laws;
• State temporary leave insurance laws; or
• Municipal ordinances addressing pregnancy accommodations.
However, an employer should keep in mind that it may not require a pregnant employee to take leave from her job for pregnancy-related reasons as long as she can perform her job (even if the employer believes it is acting in the employee’s best interest). Further, an employer may not require an employee on leave for a pregnancy-related condition to remain on leave until childbirth, or to prohibit an employee from returning to work for a certain length of time after giving birth.