Inside Counsel - 4/7/2015

Examples of pregnancy-related impairments employers should consider and some common ADA accommodation requests

Does the EEOC expect preferential treatment for pregnant employees?

The Equal Opportunity Employment Commission (EEOC) would say it does not expect preferential treatment for pregnant employees. And, technically that might be correct under the terms of the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

However, the interplay between the statutes, regulations and EEOC guidance is complex and likely leads many employers to providing preferential treatment to pregnant workers merely to simplify matters and avoid legal entanglements. This is likely amplified by the fact that most pregnancy situations are of relatively short duration, and as in many other employee health issues, the employee often will be able to find a doctor who will agree with their requested accommodations, such as time off from work. Obviously, the smaller the employer organization, usually the greater burden it is to comply with the pregnant employee’s requests.

The EEOC acknowledges that the PDA requires only that an employer treat pregnant employees the same as it treats workers who are not pregnant, but who are similar in their ability or inability to work. Consider light duty. While creating a light duty position is not recommended, some employers still do this, and the EEOC expects pregnant employees with light duty excuses to be treated the same as other workers. The EEOC allows certain limitations on the light duty, including the number of light duty positions or how long an employee can be on light duty. Under those rules, the employer may lawfully apply the same limitations to pregnant employees as it applies to non-pregnant employees. The EEOC even admits that if an employer does not provide light duty for anyone it does not have to do so for pregnant workers.

However, some employers have historically followed a policy of only making light duty positions available to employees who have been injured on the job. The EEOC takes the position that such a policy results in unlawful pregnancy discrimination. The issue made it in front of the U.S. Supreme Court in Young v. UPS where the employer won in the lower courts, but the matter was remanded on March 25 with the majority opinion at least hinting that it might favor an outcome for the plaintiff, though the Court specifically did not adopt the legal rationale of either the plaintiff, employer or EEOC. While the ultimate outcome is still uncertain, employers should consider revising their light duty policies to include pregnant individuals.

In some ways, the FMLA is the broadest but easiest law with which to comply in a pregnancy situation. The FMLA entitles an eligible employee to take up to 12 work weeks of job protected unpaid leave for the employee’s serious health condition, the birth of a child, to bond with a newborn or to care for a child with a serious health condition. In addition, the FMLA allows male and female employees to take protected leave time to bond with a newborn child, but it must be taken within one year of the child’s birth and must be taken as a continuous block of leave, unless the employer agrees to allow intermittent leave (such as, a part-time schedule).

The ADA Amendments Act of 2008 put back into play so-called impairments which courts had not considered covered disabilities. Since 2008, it is highly likely that many temporary impairments related to pregnancy or child birth will now be considered a protected disability under the ADA, as well as a serious health condition under the FMLA. Examples of pregnancy-related impairments that employers should consider include:

• Pelvic inflammation limiting the ability to walk or stand for prolonged periods
• Pregnancy-related carpel tunnel syndrome affecting the ability to lift or perform manual tasks
• Disorders of the uterus or cervix that may necessitate physical restrictions, such as bed rest, to enable a full-term pregnancy, or may result in limitations following child birth
• Sciatica, limiting musculoskeletal function
• Gestational diabetes, limiting endocrine function
• Preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions

What are some ADA accommodations a pregnant worker may request, and for which the wise employer will engage in an “interactive dialogue” with the employee and possibly the employee’s doctor?

• Granting leave in addition to what is available under the FMLA or the employer’s sick leave policy.
• Redistributing non-essential job functions, for example, occasional lifting, or altering how an essential or marginal function is performed.
• Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation, even though keeping drinks at workstations is generally prohibited
• Modifying a work schedule to accommodate severe morning sickness, so the employee can arrive later than usual (and possibly leave later to make up the work time, depending on the nature of the job). Note, intermittent leave would be required for a FMLA covered employee.
• Allowing a pregnant worker placed on bed-rest to telecommute where feasible.
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing.
• Temporarily assigning an employee to a light duty or different job position (if available). Note, if the reassignment is made while on FMLA intermittent leave to make it easier to accommodate the employee’s need for time off then the second job would need to be paid at the employee’s regular rate of pay; but if FMLA does not apply or has been used up and the secondary job position is normally paid at a lower rate, then that lower rate can be applied to the employee.

Republished with permission. This article first appeared in Inside Counsel on April 7, 2015.