The EEOC released its updated enforcement guidance on pregnancy discrimination yesterday — the first time it’s done so in more than 30 years. You can access the guidance and related documents here.

Specifically, as stated in the EEOC’s press release, the guidance addresses:

• The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
• Lactation as a covered pregnancy-related medical condition;
• The circumstances under which employers may have to provide light duty for pregnant workers;
• Issues related to leave for pregnancy and for medical conditions related to pregnancy;
• The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
• The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
• When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
• Best practices for employers to avoid unlawful discrimination against pregnant workers.

Here are some quick takeaways we had from the guidance:

Employers May Violate the PDA if they Don’t Reasonably Accommodate Pregnant Workers

In our June 9th post, we discussed at length the Young v. UPS case and the interplay between the Pregnancy Discrimination Act and the Americans with Disabilities Act. While the PDA does not include an explicit requirement that employers reasonably accommodate pregnant workers, we predicted that the EEOC would update its enforcement guidance to effectively read one into the statute. The EEOC has now effectively done so for the reasons we discussed in that post. Here is the relevant language from the EEOC’s updated guidance:

“The ADAAA expanded the definition of disability to include employees with conditions requiring work-related restrictions similar to those needed by pregnant women. For example, someone who, because of a back impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA entitled to reasonable accommodation, absent undue hardship. The same individual would be an appropriate comparator for PDA purposes to a woman who has a similar restriction due to pregnancy.”

In other words, you will now have to reasnably accommodate the pregnant worker because she will be the same or similar to the temporarily disabled worker in her ability or inability to work.  It will be interesting to see how, if at all, the Supreme Court addresses this issue and this updated guidance when it hears Young v. UPS appeal in its next term.

Pregnant Workers Much More Likely to Seek Protection Under the ADA as Well

The updated guidance also confirms that the recent amendments to the ADA now make it much easier for pregnant workers to demonstrate their pregnancy-related impairments qualify as disabilities under the ADA and are subject to reasonable accommodation. The guidance identifies various pregnancy-related impairments that could qualify as disabilities under the ADA.

The Guidance Identifies Several Potential Reasonable Accommodations for Pregnant Workers

Some examples identified in the guidance include:

• Redistributing marginal functions that the employee is unable to perform due to the disability. Marginal functions are the non-fundamental (or non-essential) job duties.
• Altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting, or bending requirements).
• Modification of workplace policies (e.g. allowing an employee to have water on a table near the employee’s desk despite a company policy prohibiting water near the workstation).
• Purchasing or modifying equipment and devices (e.g. allowing an employee working at a counter to sit on a stool while she serves customers).
• Modifying work schedules (e.g. allowing an employee to see a doctor during day and work an extra hour past normal shift).
• Granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
• Temporary assignment to a light duty position.

The standard rules apply to the accommodation – the accommodation must, of course, be reasonable, and the employer can select the one that it prefers and not the one that the employee prefers. It also can refuse to provide the accommodation if it would cause the employer undue hardship.

Treat Men and Women Equally When it Comes to Parental Leave

It’s certainly okay to provide women with separate paid or unpaid leave to recuperate from childbirth or childbirth-related conditions. But you cannot provide additional paid or unpaid parental leave to bond and/or care for the child to women and not equally to men. Such a policy will violate the law according to the EEOC. Therefore, make sure that your parental leave-related policy makes this distinction.

The Hobby Lobby Fight Will Likely Eventually Make Into the Civil Rights Space

The guidance sidestepped any substantive comment on the recent Hobby Lobby decision’s application to Title VII or other discrimination laws.  In that case, the Supreme Court held that the Affordable Care Act’s contraceptive mandate violated the federal Religious Freedom Restoration Act as applied to closely held family for profit corporations whose owners have religious objections to providing certain types of contraceptives. The guidance notes that an employer may violate the Pregnancy Discrimination Act by excluding prescription contraceptives from a health insurance plan that otherwise offers comprehensive coverage to its employees, but noted that it took no position whether certain employers, like those discussed in Hobby Lobby, might be exempt from the PDA’s requirements under the First Amendment or under the Religious Freedom Restoration Act. We will certainly be tracking this issue going forward.

Recommendations

In our June 9th post, we noted several best practices that employers should consider as we were waiting for the EEOC’s updated guidance. Now that the guidance has arrived, we continue to recommend these practices and restate them below:

1. Consider accommodating your pregnant workers. The guidance confirmed what we expected: that employers may no longer routinely dismiss reasonable accommodation requests related to pregnancy. You should carefully review these requests to avoid potential liability.
2. Try to be practical; see the bigger picture. If accommodating pregnancy requests will prove inexpensive, consider allowing them even if you believe not doing so is lawful. And even if the accommodation request may be expensive, measure it against the other potential benefits such as a corresponding increase in employee morale, your ability to retain valuable employees and your reputation in the market – benefits that may ultimately outweigh the cost of the accommodation and enhance your bottom line.
3. Comply with ALL laws. You may already be subject to a state and/or local statutes (i.e. Maryland and New York City) that explicitly obligate you to reasonably accommodate pregnant workers. If you are and you aren’t accommodating your pregnant workers, it’s time to change course.
4. Enforce policies consistently. Real problems arise for employers that reject outright requests by pregnant employees that they would grant for non-pregnant workers. This may seem obvious, but is lost on many employers who treat pregnancy-related requests uniquely. For example, all other things being equal, if you would advance a non-pregnant worker vacation days because she wanted to join her friends on a bachelorette party, then you should think twice before denying a vacation advance request by a pregnant worker who wants to rest at home in the last week of her term.
5. Don’t Make Decisions on Behalf of Pregnant Workers. Employers often get into trouble when they try to modify a pregnant employee’s work situation (i.e. I am not going to let you lift anything heavy while you are pregnant). You can’t do that except in very limited circumstances – if she is willing and able to perform the job, you usually must and should let her work.

We will update this post accordingly once we hear from the Supreme Court on the Young v. UPS case in its next term.