Pregnancy in the Workplace: Ensuring Compliance in Accommodating Employees and Spouses

In light of a pending U.S. Supreme Court decision and recent updates on pregnancy discrimination by the Equal Employment Opportunity Commission ("EEOC"), it is important for employers to recognize their rights and responsibilities when it comes to accommodating pregnant employees and their spouses.

Overview of Federal Legislation

The Americans With Disabilities Act (ADA), although not recognizing pregnancy as a disability, does recognize certain pregnancy related impairments, such as carpal tunnel syndrome, gestational diabetes and preeclampsia as disabilities, and requires that reasonable accommodations be made for employees with such conditions.  In addition, certain states and cities have passed legislation mandating reasonable accommodations similar to that afforded under the ADA for pregnancy related issues.

Under the Pregnancy Discrimination Act (PDA), discrimination on the basis of pregnancy, childbirth, or related medical conditions is a form of unlawful sex discrimination.  In order to comply with the PDA, an employer must not discriminate or harass based on pregnancy, childbirth or related conditions, and an employer must offer light duty, leave and medical benefits to pregnant employees equal to those offered to others who are similar in their ability or inability to work.

The Family and Medical Leave Act (FMLA) provides for 12 workweeks (either continuous or intermittent) of unpaid, job-protected leave to eligible employees, both female and male, in connection with the birth, adoption, or foster care of a child, serious health conditions (including incapacity, doctor's appointments and morning sickness), and the care of a sick child, parent or spouse.  During an employee's leave, medical benefits must be continuously provided, and employees must be reinstated to the same or substantially similar position.

Finally, the Fair Labor Standards Act (FLSA) also was amended so as to ensure that nursing mothers were provided with a break of reasonable duration and a private location (other than a restroom) to express breast milk for up to one year following their child's birth.

EEOC Guidance

According to a statistic published by the EEOC, more than 3.500 charges of pregnancy discrimination were filed with the agency in 2013.  In response, the EEOC issued additional guidance to assist employer compliance, including:

• employer health plans must cover medical expenses, including those arising from pregnancy related conditions, of male employee spouses if they cover the medical expenses of female employee spouses;
• disability benefits for pregnancy related conditions must be provided to both married and non-married employees; and
• if an employee is unable to perform the functions of her job due to pregnancy, the employer must treat her as it does other "temporarily disabled employees" by providing, for example
  • modified tasks
  • alternative assignments, such as light duty
  • disability leave
  • leave without pay

Forthcoming Supreme Court Response    

Courts have failed to reach a unanimous decision on whether and how employers must accommodate pregnant employees.  The Supreme Court should soon issue guidance on the issue with a decision in Young v. UPS, where a UPS employee who became pregnant was forced to take an extended and unpaid leave of absence.  UPS asserts that Young was treated no differently than any other temporarily disabled employee who incurs an injury outside of the workplace.  UPS has a company policy that employees are able to lift up to 70 pounds, and Young's doctors advised that she should not lift more than 20 pounds.  UPS argued it did not have to provide a reasonable accommodation because pregnancy was not a disability under the ADA.  Following the birth of her child, Young returned to working for UPS.

Ensuring Employer Compliance

In order to ensure compliance with all the applicable federal and state legislation, employers should ensure they:

• provide information to employees about their rights;
• develop and enforce policies in compliance with the PDA, ADA, FMLA and FLSA;
• train managers and employees about their rights and responsibilities;
• respond to complaints of pregnancy discrimination quickly and effectively, and
• appoint a person to understand and oversee employment policies and practices regarding pregnancy and new parent leave
  

If you have questions concerning accommodating pregnant employees and their spouses, please contact Jamie Schumacher at 814-870-7613 or jschumacher@mijb.com.