Most employers probably know that they cannot discriminate against employees on account of pregnancy or childbirth.  The right of a pregnant employee to be free of discrimination arises from the federal Pregnancy Discrimination Act (PDA), which makes such treatment a form of gender discrimination under Title VII of the Civil Rights Act of 1964.  Other employment laws, including the Family Medical Leave Act (FMLA) and various state laws, may also come into play when dealing with an employee’s pregnancy. 

While the application of these laws in dealing with an employee who is or was pregnant is straightforward most of the time, the issue of proper accommodations for pregnant employees is not always as clear.  It is getting more attention in the legal arena though, which is why employers need to be up to speed on their obligations in this area. 

Notwithstanding the fact that the Pregnancy Discrimination Act has been around for more than 35 years, the current strategic plan which the Equal Employment Opportunity Commission (EEOC) is operating under makes accommodating pregnancy-related limitations one of the agency’s top priorities for the years 2013-2016.  Since the EEOC is putting more resources into this area, employers certainly need to pay attention to the issue, too. 

Additionally, because of gaps in the application of existing laws relating to pregnancy discrimination, many states have either enacted, or are considering, laws specifically addressing proper accommodations for pregnancy.  In fact, West Virginia recently passed one of these laws called the Pregnant Workers’ Fairness Act. 

Employers commonly know that pregnant employees are entitled to time off related to the birth of a child, but employers probably misstep most often when dealing with employees who are pregnant by overreacting to the pregnancy.  Sometimes employers will require special certification from a doctor, or simply force pregnant employees to take leave during pregnancy so they aren’t at risk for having something bad happen to the employee’s unborn child.  Both are mistakes.  Pregnant employees must be permitted to work as long as they are able to perform their jobs and should be treated the same in this regard as their non-pregnant co-workers. 

Regardless of state laws on this topic, employers shouldn’t forget about the impact of the Americans with Disabilities Act (ADA) as it relates to pregnancy-related health conditions.  That Act covers most employers, and when the Americans with Disabilities Act Amendments Act (ADAAA) expanded the definition of disability in the ADA several years ago, many pregnancy-related conditions became covered by it.  This means – absent an undue hardship – engaging in the interactive process by discussing with your pregnant employees how best to try and provide a reasonable accommodation to pregnancy-related disabilities.  Of course, that could include making adjustments to the employee’s workstation, providing stools, modifying duties, offering additional breaks and leave, changing work schedules, and more. 

The best suggestion for employers to make their lives easier in dealing with pregnancy-related accommodations is to have specific and unambiguous job descriptions.  Remember, employers are not obligated to eliminate essential functions to permit an accommodation, so having a clear and accurate list of essential job functions in that description is critical.  Also, a good job description makes the interactive process easier because it’s simpler for your employee’s doctor to know what is required from her work, and then easier for you to discuss the possibility of reasonable accommodations with your employee. 

Another important thing for employers in managing pregnancy and childbirth-related conditions is to be sure managers are trained in what the employer’s obligations are.  First-line supervisors are often the ones initially confronted with news about pregnancy, as well as questions about accommodation, and employers are at greater risk of liability if those managers fail to deal with either properly.  Training on this subject should be done annually, at least. 

Next to retaliation claims, defending an alleged unlawful action based on pregnancy may be the most challenging legal position for an employer. To avoid that unenviable role, employers must remember that dealing with pregnancy doesn’t just mean making equal employment decisions; it may mean properly accommodating pregnant employees. Don’t hesitate to reach out to counsel if you have doubts about what to do in a given case.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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