What is protected? Which legal requirements should employers be aware of with respect to pregnant employees? Can an employer restrict its light duty program to certain employees? What kind of accommodations do employers need to provide?
At a recent XperHR webinar, attorney Robin Shea, of Constangy, Brooks, Smith & Prophete, LLP, addresses some of these challenging issues. The following are some tips and strategies to keep in mind when handling pregnancy accommodations.
Understand Your Obligations
Recognize that reasonable accommodations for pregnancy or lactation may be required under federal, state and local law.
On the federal level, reasonable accommodations may be required if an individual has a pregnancy-related disability under the Americans with Disabilities Act (ADA) and there is no undue hardship for the employer. Additionally, in Young v. United Parcel Service, the US Supreme Court ruled that employers might need to accommodate pregnancy-related restrictions under the Pregnancy Discrimination Act (PDA) if the employer accommodates non-pregnant employees who are similarly restricted and failure to accommodate would significantly burden pregnant employees.
Additionally, amendments to the Fair Labor Standards Act (FLSA) may require lactation accommodations in the form of breastfeeding breaks and a private space to breastfeed.
Shea reveals that a significant number of states and localities have gone one step further. Many now require employers to provide reasonable workplace accommodations to pregnant and/or lactating employees unless doing so would create an undue hardship.
Further, a pregnant employee may be entitled to leave and time off under:
• The federal Family and Medical Leave Act (FMLA);
• State family and medical leave acts;
• State pregnancy disability leave laws;
• State temporary leave insurance laws; or
• Municipal ordinances addressing pregnancy accommodations.
Once obligations are understood, make sure these are reflected in your policies, practices and procedures with respect to the ADA, FMLA, light duty work, lactation accommodations and pregnancy accommodations and incorporated into your employee handbook.
Recognize When You Need to Accommodate Pregnancy
Off the bat, Shea states that pregnancy often means much more than just the nine months of gestation and may include:
• Fertility treatment;
• Artificial insemination;
• The actual period of gestation;
• Childbirth and recovery;
• Post-partum depression; and
Further, accommodations may need to be provided for various pregnancy-related conditions, including but not limited to:
• Pregnancy-related sciatica;
• Gestational diabetes;
• Pelvic inflammation;
• Nausea causing severe dehydration; and
• Preterm labor.
Notwithstanding this, an employer or supervisor must be aware of an employee’s need for an accommodation. Once aware, the employer must engage in the interactive process or a meaningful good faith discussion regarding the need for the accommodation. During such a process, the employer may request documentation and information regarding the specific medical limitation, how this impacts the employee’s ability to perform the job and how the requested accommodation will allow the employee to perform the job’s essential functions.
Be Creative with Accommodations
When it comes to accommodations, an employer and an employee should work together to think of creative solutions that may allow the employee to remain at her job.
Reasonable accommodations may include:
• Providing more frequent, longer or flexible restroom breaks;
• Modifying a no-food or no-drink policy;
• Reassigning an employee to a vacant position;
• Providing or modifying equipment or devices;
• Modifying an employee’s work station;
• Providing seating;
• Providing a temporary transfer to a less-strenuous or less-hazardous position;
• Providing assistance with manual labor and limits on lifting;
• Allowing scheduling flexibility for prenatal visits;
• Changing job duties or work hours;
• Relocating an employee’s work area;
• Providing leave; or
• Providing break time or facilities for expressing breast milk.
Also, Shea reminds employers that the requested accommodation should allow the employee to perform the essential functions of the job. In providing an accommodation, marginal functions may be modified or removed if the individual can still perform the job’s essential functions.
Try to Make it Work If Possible
No matter what type of workplace, make a good faith effort to try to provide an accommodation and make it work unless doing so would create an undue hardship.
For example, if an employee requests leave, but is not entitled to leave under the FMLA or has exhausted her leave entitlement, think outside the box and attempt to find another way to provide leave. For example, see if there is a state or local law that would apply. Further, if no leave is available, attempt to find an accommodation that would permit the employee to continue to work, such as telecommuting or offering flexible working arrangements. However, Shea notes that while leave is a reasonable accommodation, it should be a last resort unless the employee requests it.
Likewise, consider providing light duty work to pregnant employees in the same manner that light duty work is provided to employees on worker’s compensation and with other medical restrictions. Such light duty work will permit pregnant employees to stay engaged and keep working during the time they need the accommodation.
However, remember that an employer may not be required to provide an accommodation if it would create an undue hardship, which is defined as a significant difficulty or expense. In determining this, consider:
• The nature and cost of the accommodation;
• The overall financial resources of the facility or entity;
• The entity’s operations;
• The impact of the accommodation on the department’s operations and cost; and
• The impact of the accommodation on other employees.
Keep in mind that in providing an accommodation, an employer does not need to create a job or displace another employee. Further, Shea confirms that an employee does not need to be placed in a job she is not qualified for in terms of skills, education or experience.