Many of you may have heard about the new pregnancy Guidance which was issued by the EEOC this week, as the EEOC distributed it to the mainstream media.
The pregnancy Guidance is part of the EEOC's six-part "Strategic Enforcement Plan", which was announced in 2012.
The Guidance is 30 pages long and can be found here.
It contains 22 hypothetical illustrations relating to pregnancy, such as examples of discrimination based on abortion, past pregnancies or the intent or plan to become pregnant, lactation, breastfeeding and other post-pregnancy child care responsibilities along with the EEOC's perspective on the efforts employers should make to try to accommodate pregnant employees' physical limitations.
The Guidance also makes note of the fact that despite the recent Hobby Lobby U.S. Supreme Court decision the EEOC would regard an employer's decision not to provide any type of oral contraceptives as part of a health insurance plan as gender and/or pregnancy discrimination. The Agency acknowledged in a footnote that it could not speak to whether further religious exemptions from doing so would be recognized under the Religious Freedom Restoration Act that Hobby Lobby relied upon. [The Hobby Lobby case did not consider this "refusing to provide all contraceptives" question, as Hobby Lobby and the other employer involved did not challenge this broader obligation, only the obligation to provide health insurance coverage for certain forms of post-conception contraception.]
No employer is required to provide health insurance coverage for abortions.
There are several helpful provisions in the new Guidance for employers such as:
(1) A reminder not to just put a pregnant employee out on leave when she brings in restrictions. If you do not have any work she can perform within the restrictions, then placing her on leave may be appropriate, but you should first review (and document!) whether any work is available before just placing her out on leave.
(2) Pregnant employees who have no restrictions from their doctor also certainly should not be forced to go out on leave, accept a temporary transfer, etc. just because you personally are feeling protective of them or are worried that they or the baby could be harmed if they continue to work. The decision to continue working and for how long during a pregnancy needs to be left to the employee and her doctor except in a few very rare situations where an unquestionable hazard is involved.
(3) If an employee begins complaining about her work as it relates to her pregnancy or states that she is experiencing pain, discomfort, etc., you should document her comments, ask her to sign them, place her on a temporary administrative leave (if you do not have any work she can do on a temporary basis that does not cause her discomfort, etc.) and give her a deadline to provide medical support for her issues, just as you would anyone else who is saying they are having difficulty working due to any other type of medical issue. [The EEOC cautions against "unreasonable" requests for medical documentation, which would be anything beyond documentation of the pregnancy (if it is not yet obvious) and supporting the accommodations requested.]
(4) There is also a reminder of the EEOC's position that employer policies which reserve all light duty for only those injured on the job violate the federal Americans with Disabilities Act (ADA) as well as the federal Pregnancy Discrimination Act (PDA).
(5) Employers may be found liable for "unintentional" gender and/or pregnancy discrimination if the essential functions of a job (a) have the effect of disproportionately excluding females from the job and (b) cannot be shown to actually be essential to the job. (This is one of the reasons it is important to review your job descriptions periodically with the employees who perform the jobs described to make sure they still accurately reflect what they do on a regular basis.)
On a more troubling note, the new Guidance states that the same could be true of any policy which is deemed to have a disproportionate effect on pregnant women – such as a policy limiting the amount of leave an employee may take during his/her first year of employment. The Guidance provides that employers must be able to "not only articulate but objectively support" a business reason for having such a policy. The EEOC says it will reject, for instance, the explanation that an employer does not offer any or only offers a limited amount of leave during the first year of employment because it does not want to reward any employees with time off until they prove their "staying power", unless the employer can document a higher turnover during the first year of employment than in successive years – if a pregnant employee challenges such a policy as having a disproportionate effect on pregnant employees.
(6) Pregnant employees are protected from harassment or discrimination in hiring, promotions, training, etc. based on either the actual effects of their pregnancies (that can be reasonably accommodated) or pregnancy stereotypes.
(7) The new Guidance states that employers may provide more leave time for female than male employees without violating Title VII if the employer makes it clear that the additional time for the female is due to "recovery from pregnancy and childbirth" and does not just lump it all in together as "child care, baby bonding or parental leave."
(8) Finally, under both the federal PDA and the ADA, pregnant employees are not entitled to "special" or "preferential" treatment based on their pregnancy. So, for instance, if you have a new employee who announces she is pregnant and who does not qualify for any leave (under either the federal Family and Medical Leave Act (FMLA), which requires one year of employment and 1250 hours of service in the past 12 months, or under your own regular company leave policies), you do not have to provide her with excused time off for morning sickness, prenatal visits or once the baby is born. She would be subject to the same attendance and disciplinary action policies as all other employees (subject to item 5. above).
One troubling exception to this concept in the new Guidance is that the EEOC indicates in several of its hypothetical illustrations that it reads the PDA to require employers to treat all pregnant employees who have restrictions similar to those of employees who are disabled under the ADA the same as the disabled employees from an accommodation standpoint. So, for example, if you have allowed an employee who could not work due to cancer to take time off in excess of or before he/she was eligible for FMLA leave (which unless it was an undue hardship to do so you would have to do under the ADA, since cancer is a disability under that law), this new Guidance says the PDA's requirement that pregnant women be treated "the same as those similarly-situated in their ability to work" would require that you provide this excess time off to any pregnant employee who requests it due to her pregnancy as well.
Most courts have not followed this last line of thought, and since this Guidance is not legally binding on courts it is unclear whether it would be followed by courts in the future. But at the EEOC Charge stage, this is apparently the standard the EEOC is going to use regarding the accommodation of pregnant employees.
The new Guidance is consistent with the EEOC's prior one on the ADA as amended by the ADAAA in saying that pregnancy is not a disability in and of itself. Pregnancy-related disabilities such as bed-rest or some lifting or other restrictions which are very severe (ex. no lifting or standing or only lifting 5 pounds or standing for 1-2 hours per day) or which last for more than several weeks would be subject to accommodation as all other disabilities under the ADA unless they pose an undue hardship on the employer.