Part 5 of a 6-part series examining the steps in-house counsel should take with pregnant employees
Our first segments in our six-part series on pregnancy in the workplace focused on how the ADA, FMLA and PDA apply in the workplace to employees before, during, and after pregnancy and child birth. In this segment, we narrow our focus to address work restrictions during pregnancy.
Although pregnancy itself is not a disability, the 2014 EEOC Guidance on Pregnancy Discrimination nevertheless suggests that employers must reasonably accommodate temporary, pregnancy-related medical conditions. Physicians frequently provide pregnant employees restrictions (e.g., a limited number of hours of work per day or pounds they can lift, additional breaks). As an initial matter, employers should always follow a doctor’s restrictions to the letter and instruct the employee she is not to perform work her doctor has restricted.
Employers considering pregnancy-related restrictions should engage in an “interactive process” with the employee, which looks something like this:
1. What are the restrictions and how long they are expected to last? Unlike some other “disabilities,” pregnancy-related conditions have a definite end date, making an employer’s argument that it cannot accommodate indefinitely less compelling. Employers should, however, keep in mind that the level of restriction could increase as the pregnancy progresses.
2. What are the essential functions of the job, and do the restrictions impact the key functions or only marginal functions? If only marginal job duties, temporarily eliminating those functions will almost always be the right answer. If essential job functions are affected, the length of the restriction becomes more important. For example, an employer may reassign part of the pregnant employee’s duties for a couple of weeks before her due date, but may not be able to do that for all nine months of her pregnancy.
3. Can the employer reasonably accommodate the restrictions? This analysis should focus on what modifications, if any, will allow the employee to perform the essential job functions. If there is more than one reasonable accommodation available, the employer should discuss the options with the employee but does not have to pick the accommodation the employee wants, only a reasonable one. Also, employers should keep track of the temporary accommodations so they do not become permanent and ultimately alter the essential functions of a position.
In some cases, the employer may not be able to reasonably accommodate the restrictions. For example, the employee is a hazardous material handler, 60 percent of her job duties require that she work in a warehouse with hazardous materials, and her doctor says she cannot be “around hazardous materials.” After the employer asks whether the employee could be exposed for short periods or if there is any protective gear that would enable her to do 60 percent of her job, the doctor may say no. Neither the ADA nor the PDA require an employer to let the employee do 40 percent of her job as a reasonable accommodation. (Once the employee and doctor understand that the employer cannot accommodate the original restriction, do not be surprised if the employee appears with a new doctor’s note with lesser restrictions.)
4. If there is a reasonable accommodation, would providing it constitute an undue hardship? The short answer is “unlikely.” Under the law, an undue hardship means it cannot be done or is outrageously expensive, so the bigger the employer, the less likely undue hardship will be a winning argument. Accordingly, this is a last resort and not one on which an employer wants to rely.
5. Is there a vacant position in which the disability can be accommodated? This is only available if the employer cannot reasonably accommodate the restrictions in the employee’s current position. If an employer transfers an employee as an accommodation, the ADA, unlike the FMLA, allows an employer to (a) pay the employee for the job she is performing, even if it is a lower rate than her original job AND (b) not hold open the old position. Employers facing this situation should make clear that the transfer is available but is not light duty—it is her new assignment, potentially at a new rate of pay, and when she is able to perform her old job, it may not be available.
6. Does the employer have light duty positions that would accommodate the restrictions? TheYoung v. UPS case did not fully clarify the issue, but signals that employers should offer light duty to pregnant employees if they offer it to anyone else.
7. Is the employee eligible for FMLA and, if so, would intermittent leave or shortened days address the restrictions? If so, offer the employee FMLA leave. If the altered schedule is not workable in her current position, consider transferring her temporarily to an alternate position with equivalent pay and benefits. Of course, when the restrictions are lifted, the employee must be placed back in her old job (or an equivalent). If the employee does not have FMLA rights, consider whether such a schedule change may still be a reasonable accommodation under the ADA.
8. If not intermittent FMLA leave, can extended FMLA leave work? This may exhaust all or most of her available leave prior to the baby’s arrival, which leads to another set of issues we will address in the final segment.
9. If the employee has no FMLA rights, employers should consider offering leave (intermittent or extended) leave under the ADA. In making this determination, employers should consider the length of the requested leave and whether they have provided such leave to other employees who have other restrictions or conditions.
If there are no options, the employer may have to tell the employee the company cannot reasonably accommodate her restrictions and her employment is ending. In that situation, employers should clearly document all of the information from the employee and the interactive process and encourage her to reapply for available positions when she is able to return to work.
Republished with permission. This article first appeared in Inside Counsel on May 5, 2015.