The situation that is at the epicenter of a recent controversy involving a Pier 1 employee, and a recent Connecticut federal court case, arises in the context of a pregnant employee being unable to carry out essential job functions due to a pregnancy-related condition. The employer may then “force” the employee to commence the use of contractual sick leave and/or Family and Medical Leave Act [“FMLA”] leave prior to when planned. As a result, the employee may run out of leave at an earlier time than what was anticipated, with the employee then facing the possibility of termination following the exhaustion of leave. In Connecticut, litigation that has been percolating through the courts over these issues hopefully can give guidance to employers as to when there may be a need to exceed statutory (or contractual) leave when dealing with pregnant employees.
In Turner v. EASTCONN, 2013 WL 6230092 (D.Conn. December 2, 2013), a teacher employed at a special program for students with aggressive behaviors became pregnant. Mid-way through the pregnancy, the teacher produced doctors’ notes indicating that she could not work one-on-one with aggressive students. This restriction would effectively have eliminated at least two-thirds of the teacher’s duties, and this teacher further requested that she only be required to perform “administrative” duties during the remainder of her pregnancy. In light of both the lack of an available position for her to transfer into during the remainder of the pregnancy, and an inability to simply eliminate duties that were the essence of her position, the employer placed the teacher on FMLA leave. The employee soon gave birth. When her FMLA (and sick) leave had expired, the teacher requested additional leave, due to a need (or desire) to take care of her children. The employer did not agree to such additional leave, and her employment was terminated. The teacher filed suit.
In December of last year, the federal court threw out her case. Among other things, the court ruled: 1) the teacher’s pregnancy did not constitute a “disability” under the Americans with Disabilities Act [“ADA”], 2) even if she was considered to be disabled under the ADA, in the absence of an available position for a transfer and since she could not perform the majority of her duties, she was not entitled to the accommodations sought, 3) as the reason that she needed an extension of leave had nothing to do with her own medical condition or “disability,” but rather was related to the care of her children, neither the ADA nor the gender-based Pregnancy Discrimination Act [“PDA”] mandated an extension of her leave beyond her usual leave entitlement, and d) as she was offered all the leave that she was entitled to under the FMLA, and since the FMLA does not protect employees against being “forced” to take leave, her FMLA claims failed. The Turner case is currently on appeal to the Second Circuit of the U.S. Court of Appeals; in addition, the teacher may pursue remaining state anti-discrimination claims in state court.
WHAT DOES THIS ALL MEAN? While Turner is instructive, an employer’s obligations with regard to the treatment of pregnant employees is highly fact specific.
While pregnancy is generally not considered to be a “disability” under the ADA, it is possible that a particularly complicated pregnancy may entitled an employee to protections and accommodations under the ADA, including leave above and beyond FMLA leave.
In addition, if the employer makes a presumption based upon stereotypes concerning pregnant employees, for example, a belief that the pregnant employee is “disabled” or unable to work that is divorced from the employee’s actual medical condition, such (mis)perceptions may entitle the employee to certain protections under the ADA (for example, protection against being forced to take leave if the employee can still perform her job functions and against decisions that are based upon the employer “regarding” the pregnant employee as being disabled).
Under both state and federal gender discrimination laws, employers are also required to make accommodations for pregnant employees, including a leave of absence for disability due to pregnancy. While it is clearly not reasonable to eliminate at least 2/3 of the most essential duties of an employee (for example, all teaching duties for a teacher), there are usually circumstances where accommodations or a transfer into an available position can be made.
Generally speaking, under federal gender discrimination regulations, “unless the employee on leave has informed the employer that she does not intend to return to work, her job must be held open for her return on the same basis as jobs are held open for employees on sick or disability leave for other reasons.” 29 CFR Part 1604, Appendix (emphasis added). Employers should not view the expiration of the FMLA leave period as being the absolute end of any possibility to provide further leave to the pregnant employee. While the teacher in Turner could not claim an entitlement to additional leave due to the fact that this leave was not for her own medical condition, but rather to care for others (her children), there are circumstances where the ADA (and PDA) may provide an entitlement to leave beyond the FMLA, especially where 1) other short term “disabled” employees were provided such additional leave, and 2) where the leave is related to the employee’s own pregnancy-related medical condition, in particular, when the pregnancy is complicated.
Finally, Connecticut law may provide an additional nebulous right to a “reasonable leave of absence” (with an almost absolute right to reinstatement) that may be even more expansive than that provided under federal law; the extent of such extra protections under state law may be resolved via ongoing litigation. Wanamaker v. Town of Westport Bd. of Educ., 2014 WL 1281937 (D. Conn. March 27, 2014).