On Monday, July 14, the EEOC issued guidance relating to its current interpretation of the Pregnancy Discrimination Act and the Act’s interaction with the ADA and other laws.
Over the last several years, the Iowa Civil Rights Commission has moved away from its more limited pre-existing stance on pregnancy discrimination now requiring higher levels of accommodation. Iowa, citing California cases and statutes, has widely opened the area of pregnancy discrimination essentially creating a rule without rule making that states that pregnant employees must receive all accommodations given to any other employee who has a disability or injury in the workplace. This would encompass ADA accommodation as well as light-duty programs for workers’ compensation.
The new EEOC guidance, which can be found at www.EEOC.gov, takes a similar viewpoint relying on a review of the fundamental Pregnancy Discrimination Act requirements, specifically, “Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.” The EEOC makes clear that the statute covers current pregnancy as well as discrimination based on past pregnancies, potential or intended pregnancies and medical conditions related to pregnancy or child birth. This is a fairly broad array of potential claims for any company who employs women. The EEOC does indicate that close timing between the adverse employment action and something such as a prior pregnancy is a greater indication that an action is based on the pregnancy than it would be if there was a significant lapse of time.
In Section A.5. of its guidance, the EEOC is very clear that set asides for light duty for workers’ compensation are not acceptable under the Pregnancy Discrimination Act. The EEOC specifically states, “An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of the employee’s limitations (e.g., policy of providing light duty only to workers injured on the job).”
Of concern to many employers is the historically different treatment of workers’ compensation injuries. Employers may have some difficulty explaining to the worker’s compensation carrier why light duty is no longer available to an employee who is injured in a worker’s compensation matter because the only light duty positions available are currently filled by pregnant employees or others who need short-term accommodation. However, based on this guidance, as well as other cases and guidance related to the Americans with Disabilities Act, employers need to rethink their light duty process and positions. There are some options which would allow compliance with the law. The first is to have no specific light duty positions and to evaluate each and every injury individually and separately. This would entirely do away with the “make work” positions that are sometimes requested as part of the workers’ compensation process and would require specific evaluation of each job and light duty request. It would also require that the employer keep current and well crafted job descriptions so that essential functions can be fully addressed at the time of any request.
The employer may also make a determination as to how many light duty positions it could have available. Example 11 in the EEOC guidance talks about a long-term care facility which has determined that there are five light duty positions available at any given time and that these are filled on a first come first serve basis. However, a complicating factor is evident in this scenario-how long does light duty last? For pregnancy related issues there is typically an end date in terms of accommodation. For other types of conditions there may not be an end date and it is not clear whether or not an employer can set a date certain by which light duty work would end and the employee would be moved out of a light duty position into Family and Medical Leave, administrative leave or something similar if he or she cannot fulfill the essential functions of a regular, non-light duty job. This would implicate accommodation requirements under the Americans with Disabilities Act, however, the EEOC has not issued any guidance as to how long an accommodation must be provided before it becomes unreasonable. Many employers may limit time on light duty to avoid the assumption of permanent light duty positions.
Of additional interest to Iowa employers are examples 17 and 18 contained within the guidance. In example 17 it discusses the issue of an employer providing 10 weeks of paid pregnancy leave for medical leave for pregnancy to the mother and then an additional six weeks of paid leave to the male or female as “parental leave.” In this example, a male employee alleges that the policy is discriminatory; however, the EEOC makes a distinction between recovery from pregnancy and child birth and the provision of “parenting” leave stating that a policy which provides 6 weeks of parenting leave to each parent would not be discriminatory. However in example 18 the EEOC indicates that if parental leave was available exclusively for mothers, this would then be discriminatory towards fathers. If “parental leave” is offered it must be offered on “equal terms to women and men.” Pursuant to Iowa law, women giving birth are entitled to up to 8 weeks of unpaid pregnancy leave for recovery from child birth and related conditions. However, many employees who have normal pregnancies treat this 8 weeks, when they are not covered by FMLA, as the standard amount of time which they then take for parenting leave. In problem pregnancies employers may extend the leave past the eight weeks, but would this then be discriminatory to men? It would depend upon these scenarios or the mother’s underlying medical condition. So employees who may have skipped medical return to work certificates for pregnancy would now need to gather such documentation in support of any additional “medical leave.”
This guidance, fact sheets and question and answers available on the EEOC.gov website are very new with little additional guidance on how certain components will be interpreted in the practical world. The timing of this is particularly complicated from a compliance standpoint as the United States Supreme Court has recently accepted Young v. UPS, Inc., U.S. No. 12-1226 (Cert Granted 7/1/14) which is a pregnancy accommodation and discrimination based case. It is possible that the Supreme Court will decide quite differently than the EEOC on pregnancy accommodation issues and significant changes in the guidance will be required. It is also possible that the court will accept the reasoning of the EEOC which could potentially have a direct impact upon the Young case. In the interim employers must balance both Iowa and Federal law regarding pregnancy discrimination.