Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead

by Franczek Radelet P.C.
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woman_pregnant_child_stomach_brother_sister.jpgEna Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp.  She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of complications caused by her pregnancy.  Instead of working her usual 30 hours per week, her doctor limited her to 20.  Leading up to that day, she had limited restrictions (i.e., she couldn’t remove snow, vacuum or mop floors).

Ena was fired on her next scheduled work day, November 16, merely one day — 24 hours — before her anniversary date, at which point she could have taken FMLA leave.  The employer took the position that, although it was “getting by” with her earlier restrictions, the hours restriction was “untenable.”  Notably, the employer did not choose to terminate Ena’s employment based on her earlier restrictions.  But the request to reduce hours apparently tipped the balance.

Not surprisingly, after her termination, Ena filed FMLA interference and retaliation claims against her former employer.

Court Ruling

You can guess how this one turns out.  This one clearly just didn’t feel right to the court.  And frankly, as employers, we should have some pause over this personnel decision, too.  As an initial matter, the court turned aside the employer’s argument that Ena could not raise an FMLA claim because she was not eligible for FMLA leave (i.e., because she had not worked for the employer for 12 months).  The court reminded us that we look at an employee’s eligibility as of the date leave is to begin.  Here, the court effectively counseled that Ena’s employer could (and should) have allowed her to use sick leave, personal leave, or vacation leave to cover her reduced work schedule until she became eligible for FMLA leave on November 17.  As a result, the court determined that the employer’s decision to terminate Ena’s employment instead of allowing her to use her paid leave (to bridge the eligibility gap) interfered with her FMLA rights.

The Court didn’t even send these claims to a jury.  It summarily decided that the employer violated the FMLA, and it entered judgment in Ena’s favor on both her FMLA interference AND retaliation claims.  As to the retaliation claim, the court also determined that there was “no dispute that Defendant terminated [Ena] solely because she requested a reduced schedule under the FMLA. Under these circumstances, there is a direct causal connection between [Ena's] assertion of rights under the FMLA and her termination.”

That’s what I call a judicial smack down.  Wages v. Stuart Management Corp. (pdf)

Insights for Employers

The lessons learned here could go for several pages, but before I lose your interest, here are the key takeaways for me:

  1. I’ve said it before and I’ll share it again: when you are sued by plaintiffs with the names Dollar (see previous post) and, in this case, “Wages,” be very very afraid.  The great judicial gods have just smoked strike one past you.
  2. Show moms some love.  Well, not in a “violate Title VII” kind of way, but you know what I mean.  The far majority of employers I counsel don’t act like the employer did here.  They engage in the interactive process with the expectant mom, reasonably accommodate requests that reflect the spirit of the law and maintain employee morale, and are willing to provide leave as a reasonable accommodation.  And they don’t terminate the employee one day before she is eligible for FMLA leave!  I don’t want to pile on the employer here — the judgment entered against the company is a lesson it won’t soon forget — but keep in mind that we are in the human relations business, too.  As such, for an employee like Ena, who the court referred to as a “good employee with an unblemished record,” we should be looking for ways to maintain her employment, rather than finding a way to end it.  Tough message for employers to hear, but for those of you who know me, I’m not in the business of sugarcoating things for you.  (See a related, previous post here.)
  3. If we don’t show moms some love, the EEOC will.  And it’s ready to do so.  In a pregnancy discrimination case before the U.S. Supreme Court entitled Young v. UPS, the federal government filed a “friend of the court” brief (pdf) indicating that the EEOC is planning to adopt new enforcement guidance on pregnancy discrimination and accommodation that would address a range of issues related to pregnancy under the Pregnancy Discrimination Act and the ADA. Based on extremely reliable information I have received from some folks at the EEOC, the agency is likely to take the position that even “normal” pregnancies can (and often do) have accompanying medical impairments that significantly affect one of a woman’s bodily functions (e.g., circulatory system). According to the EEOC, in light of the fact that ADA regulations no longer require a specific durational requirement for an impairment to meet the definition of a “disability” under the ADA, it is expected that greater numbers of pregnant women will be able to seek protection under the ADA.  As a result, all employers should consider that many pregnant employees soon will have access to the protections and accommodations and interactive process of the ADA.

 

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Franczek Radelet P.C.
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