EEOC Adopts Tougher Rules Protecting Pregnant Workers

Pregnant employees may be entitled to accommodation under both the Pregnancy Discrimination Act and the Americans with Disabilities Act, according to the United States Equal Employment Opportunity Commission’s long anticipated Enforcement Guidance on Pregnancy Discrimination and Related Issues, issued July 14, 2014. The EEOC enforces laws against workplace discrimination, investigates and seeks to resolve discrimination complaints, and files discrimination suits against employers on behalf of alleged victims. Employers should take note because EEOC guidance, while lacking the force of law, significantly influences both court rulings and the policies of state fair employment practices agencies. In addition, EEOC guidance illustrates how the Commission will seek to enforce the law. The new Guidance updates the EEOC’s pregnancy discrimination guidelines for the first time in 30 years, noting that the problem of pregnancy discrimination continues to harm U.S. employees.

While the EEOC cannot, without Congressional authorization, create a reasonable accommodation requirement for normal pregnancy (as several states and localities, including California, New Jersey, and New York City, have done), it appears to be trying to do just that. The Guidance states that employers are required to accommodate pregnant employees in the same way the employer accommodates other employees “similar in their ability or inability to work.” Opining on an issue currently before the U.S. Supreme Court in Young v. UPS, the Guidance states that an employer who provides light duty work to employees injured on the job must offer the same light duty benefit to pregnant employees who are similarly unable to work. In addition, reflecting the ADA Amendments Act’s expanded definition of “disability,” the EEOC emphasizes that while a normal pregnancy on its own is not a disability, numerous medical conditions related to pregnancy will much more frequently be considered a disability under the ADA. This means that employers must engage in the interactive process with a pregnant or recently pregnant employee as required by the ADA to address potential accommodations should the employee raise concerns about any medical condition or impairment.

The following summarizes the policies and best practices recommended by the Commission.

General Prohibitions

The PDA prohibits discrimination based on pregnancy, childbirth, or a related medical condition — current, past, or potential. This is true even if the employer believes it is acting in the employee’s best interest.

• Past Pregnancy: An employer may not, for example, fire a woman because of pregnancy during or at the end of her maternity leave.
• Potential Pregnancy: For example, an employer may not exclude a woman from a job involving certain chemicals out of concern that exposure would be harmful to the fetus if the employee became pregnant.
• Medical Condition Related to Pregnancy or Childbirth: The EEOC clarifies that lactation is a medical condition related to pregnancy. Therefore, an employer may not discriminate against an employee because of her breastfeeding schedule.

Benefits of Employment

An employer must provide the same benefits of employment to women affected by pregnancy, childbirth, or related medical conditions that it provides to other persons who are similarly situated in their ability or inability to work.

• Light Duty Policies: Under the PDA, an employer must provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work. An employer may not confine light duty to those suffering from workplace injuries. It must provide it to pregnant employees who need it as well. Conversely, if an employer does not provide light duty to employees who are not pregnant, it does not have to do so for pregnant workers.
• Leave: An employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job. Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g., to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
• Medical Benefits: Employers who offer health insurance must provide coverage of pregnancy, childbirth, and related medical conditions. This includes coverage of contraceptives. Note that this provision will likely be reviewed in light of the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. that exempted closely-held corporations from providing contraceptive care based on their religious objections.

ADA Protections

The Guidance recognizes that a number of pregnancy related impairments are likely to be disabilities, even though they are temporary. Conditions present to some degree in many pregnancies, such as back pain and morning sickness, can now qualify for accommodations under the 2008 amendments to the ADA. Examples of reasonable accommodations that may be necessary for a pregnancy-related disability include:

• Redistributing marginal or nonessential functions (e.g., occasional lifting) that a pregnant worker cannot perform;
• Modifying workplace policies by allowing a pregnant worker more frequent breaks;
• Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
• Temporarily reassigning an employee to a light duty position.

Other Federal Laws Affecting Pregnant Workers

The Family and Medical Leave Act (FMLA) allows eligible employees of employers with 50 or more employees to take up to 12 workweeks of leave for, among other things, the birth and care of the employee’s newborn child and for the employee’s own serious health condition. If a pregnant employee used leave under the FLMA, the employer must restore the employee to the employee’s original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

Employers must provide “reasonable break time” for employees to express breast milk until the child’s first birthday under Section 4207 of the Patient Protection and Affordable Care Act (PPACA). Employers are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Employers with fewer than 50 employees are not subject to this requirement if it would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business.

Employer’s Best Practices

Employers should consider the EEOC’s long list of best practices to reduce the chance of violating the PDA, ADA, FMLA, or PPACA. The most important of these are to:

• Review policies relating to anti-discrimination, benefits, leave of absence, light duty, and accommodation to ensure that they are compliant with the law.
• Train managers and human resources professionals on the rights and responsibilities under the PDA, the ADA, and other statues that bear on pregnancy, and specifically on the duty to accommodate restrictions related to pregnancy, childbirth, or lactation.
• Take pregnancy discrimination complaints very seriously, investigate complaints promptly, and protect employees who complain from retaliation.
• Focus in employment-related decisions on the employee’s qualifications rather the employee’s pregnancy status, children, or plans to start a family.
• Make sure the business reasons for employment actions are well documented.
• Have a process in place for expeditiously considering reasonable accommodation requests.