The Rise in Pregnancy Disability Regulationsby
By Richard D. Alaniz
Disability claims are always challenging for employers, but this is especially the case when pregnant workers suffer complications that leave them unable to perform their normal job duties. For example, in one recent case, a pregnant Kansas retail worker was fired because she needed, in violation of company policy, to carry a water bottle in order to stay hydrated. In another case, a delivery truck driver in Maryland was forced on unpaid leave when her doctor recommended lifting restrictions.
As a result of such cases, there have been calls for increased legislation. For example, the Pregnant Workers Fairness Act was recently introduced in the US House of Representatives. This act would require employers to make reasonable accommodations for pregnant workers and prevent employers from requiring pregnant women to take leave when they could continue working with reasonable accommodations.
"When American families are struggling to make ends meet, we must do everything we can to keep people in their jobs", said Congressman Jerry Nadler (D-NY), one of the congressmen to introduce the proposed legislation. "Ensuring that a woman who needs minor and reasonable job adjustments to maintain a healthy pregnancy gets that accommodation should be central to our society's support for strong and stable families."
Not only is federal legislation increasingly expanding to cover pregnant workers who claim temporary disabilities, a growing number of state laws specifically ensure employee rights for pregnancy-related disabilities.
In order to treat employees with pregnancy-related disabilities fairly and legally, employers need to understand the laws that impact their companies, how those laws intersect with existing company policies, and what they need to do in order to head off a potential discrimination claim, a disability-related lawsuit, or an enforcement agency regulatory problem.
Federal and State Laws
Pregnant workers are covered by a variety of federal and state laws, some of which focus on related disabilities and others that apply to discrimination against pregnant women.
The Pregnancy Discrimination Act, through Title VII of the Civil Rights Act of 1964, bans discrimination on the basis of pregnancy, childbirth, or related medical conditions. According to the US Equal Employment Opportunity Commission (EEOC)",Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations."
Under the act, employers cannot require pregnant employees to take time off if those employees can perform their jobs, nor can they require employees to take a certain amount of time off after giving birth. Employees who need to take time off because of a pregnancy-related condition can return to work as soon as they recover, and employers cannot require them to remain on leave if they are still pregnant.
The Family and Medical Leave Act (FMLA) requires certain employers to give eligible employees up to twelve work weeks of unpaid leave in a twelve-month period when the employee is unable to work because of a serious health condition. According to the US Department of Labor, a serious health condition involves "an illness, injury, impairment, or physical or mental condition" that can include pregnancy-related incapacity.
Under the Americans with Disabilities Act (ADA), pregnancy itself has not been considered a disability. However, the EEOC has stated that some pregnancy-related impairments, such as gestational diabetes, could be considered a disability if they substantially limit a major life activity or otherwise meet the ADA Amendments Act of 2008 (ADAAA) expanded definitions of disabled.
When employees allege pregnancy disability discrimination, employers may be liable under multiple laws. In 2011, the EEOC accused a government support services contractor of discriminating against a pregnant worker under both Title VII and the ADA. According to the EEOC, when an administrative assistant with Engineering Documentation Systems, Inc. (EDSI) suffered severe morning sickness, she requested an office closer to the bathroom. Her repeated requests were denied, and she fell at least twice when descending steep stairs to the nearest restroom. The EEOC is suing EDSI, claiming discrimination and retaliation.
"Pregnant workers should not be punished or shut out of jobs simply because of their temporary condition, and we are seeing an unfortunate trend in that area", said Anna Y. Park, regional attorney for the EEOC's Los Angeles District Office.
A number of states also have pregnancy-related disability laws on the books, and companies in those states will need to comply with those laws as well as relevant federal laws.
For example, the California Pregnancy Disability Leave Law, part of the state's Fair Employment and Housing Act, requires any company with five or more employees to provide a reasonable period of leave, which cannot exceed four months. Employees disabled by their pregnancies can take the leave all at once or in increments. Employees are also eligible to transfer to a less strenuous or hazardous position and are entitled to a reasonable accommodation for pregnancy-related conditions.
In New Jersey, pregnant employees are eligible for temporary disability benefits, just as they would be for any other disability.
The Washington State Family Leave Act (FLA) allows eligible employees with pregnancy-related disabilities to take an additional twelve weeks of leave after they use up their FMLA leave. The Washington State Law against Discrimination also specifically addresses pregnancy-related discrimination. The bar for a pregnancy-related disability could be lower in Washington than the FMLA requirements of a serious medical condition. Women who take pregnancy-related disability leave in Washington are entitled to return in the same job, or an equivalent job, once they return to work.
The New York State Legislature is considering a bill that would expand the state's Human Rights Law's definition of reasonable accommodation to include those who are pregnant.
Steps Employers Need to Take Now
Employers should assume that someday they will be faced with pregnancy-related disability claims. Rather than try to deal with complicated, potentially emotional issues when an employee becomes pregnant and experiences complications, companies should review their current policies and procedures now. This will ensure that they can respond appropriately when an employee approaches a supervisor or manager with a disability claim or accommodation request.
Become familiar with relevant legislation and court rulings. States are increasingly considering and implementing laws to protect workers who have been disabled by their pregnancies. Companies should consult with their legal departments or outside counsel to be sure that they are in compliance with all relevant laws in every jurisdiction in which they operate. They should also carefully monitor pending legislation and court rulings that could affect all of their workers who claim disabilities, including pregnant workers.
Do not make any assumptions. It is natural for employers to want to be sure that employees maintain healthy, non-stressful pregnancies. However, they should never make any assumptions about what a pregnant worker can or cannot do. Instead, they must wait for pregnant workers to approach a supervisor, manager, or HR about potential accommodations or the need for short-term disability leave.
Review current policies and procedures. Companies should review their current disability policies and procedures in light of new legislation. They should consider how they treat all workers claiming disabilities to make sure they are treating pregnant workers equally and are properly considering all requests for reasonable accommodations.
Accommodations for pregnant workers can be as simple as providing a stool for employees who need to sit or assigning a closer parking space. Employees' requests may be more complicated, such as asking for a flexible work schedule due to severe morning sickness or limiting their overtime. Either way, employers must be prepared to have an open dialogue with any employee requesting an accommodation for a disability to see if one can be made without an undue hardship on the business.
Train and train again. Employees need to know what their rights are, and supervisors and managers need to know how to respond to pregnant workers with medical issues. Regular education and training will help to ward off potential lawsuits and regulatory investigations and will help shore up a legal defense should issues arise.
According to the Centers for Disease Control and Prevention, there are approximately six million pregnancies every year in the United States. Employers need to be prepared for the day when one of their workers becomes pregnant and claims a disability. By preparing ahead of time, employers will not be caught off guard and respond in a way that may be illegal or could leave the company vulnerable to a lawsuit.
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About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the US Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected].