On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidelines on pregnancy discrimination and related issues for covered employers with 15 or more employees in their workforce. The guidelines include a new interpretation of the Pregnancy Discrimination Act (PDA) that would require employers to provide “reasonable accommodation,” as defined by the Americans with Disabilities Act (ADA), to pregnant employees. The guidelines cover several issues related to an employer’s obligations under the PDA as well as the relationship between the PDA and the ADA. It includes a description of:
- an employer’s obligation to provide equal access to benefits, including light duty, leave, health care and various other benefits;
- requirements of the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the reasonable break time for nursing mothers provision under the Affordable Care Act, and other laws affecting pregnant employees;
- and the EEOC’s recommended best practices for avoiding unlawful discrimination against pregnant workers.
There are basic PDA requirements that covered employers must follow. Covered employers must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. It covers all aspects of employment, including hiring, firing, promotions, and other benefits such as leave and health insurance benefits. Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, potential pregnancy, and medical condition(s) related to pregnancy or childbirth.
- Current pregnancy – A covered employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. This is true even if the employer believes it is acting in the woman’s best interest.
- Past pregnancy – A covered employer may not discriminate against a female who is either an employee or an applicant based on a past pregnancy or pregnancy-related medical condition or childbirth.
- Potential pregnancy – A covered employer may not discriminate based on a woman’s intention or potential to become pregnant.
- Medical condition related to pregnancy or childbirth – A covered employer may not discriminate against a female because of a medical condition related to pregnancy and must treat the employee the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions. Lactation is considered a medical condition related to childbirth.
Additional guidelines:
- It is illegal to harass a woman because of pregnancy, childbirth, or a related medical condition when it is so frequent or severe that it creates a hostile environment, or when it results in an adverse employment action.
- Discrimination against an employee who has care giving responsibilities violates Title VII of the Civil Right Act of 1964, if it is based on a family member’s disability. Example: A covered employer is in violation of the ADA when it takes adverse action against a mother of a newborn with a disability over concerns that she would take off time for the child’s care or that the child’s medical condition would impose high medical care costs for the employer.
- A covered employer must provide the same benefits to women affected by pregnancy, childbirth, or related medical conditions that it provides to other persons who are similar in their ability or inability to work.
- Light duty policies – A covered employer has to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other employees who are similar in their ability or inability to work. The employer may not deny light duty to a pregnant employee based upon a policy that limits light duty to employee’s with on-the-job injuries.
- Leave – A covered employer must allow a woman with physical limitations resulting from pregnancy to take the same amount of leave as others who are similar in their ability or inability to work. Title I of the ADA may require an employer to provide leave beyond that which is usually allowed, as a reasonable accommodation for an employee with a pregnancy-related impairment that is considered a disability.
- Medical Benefits – A covered employer must provide the same terms and conditions for pregnancy-related benefits as it provides for benefits related to other medical conditions.
Keep in mind that pregnancy itself is not a disability, or is it covered under the ADA, unless, the pregnant worker has an impairment or impairments, related to the pregnancy that qualifies as a disability under the ADA. A number of impairments are likely to be considered a disability even though they may only be temporary. Examples include: pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia. A covered employer may not discriminate against a female whose pregnancy-related impairment is a disability under the ADA and must provide them with a reasonable accommodation, if needed, unless the accommodation would result in an undue hardship for the employer.
There are other laws that affect pregnant workers as well. The Family and Medical Leave Act (FMLA) allows eligible employees of covered employers (50 or more employees) to take up to 12 workweeks of leave (other conditions apply) for the birth and care of a newborn child and for the employee’s own serious health condition. The Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for hourly employees to express breast milk until the child’s first birthday. Covered employers are required to provide a place (not a bathroom) that is away from the view and free of intrusion from the public and other coworkers, for the employee to express breast milk. Employers with less than 50 employees are not subject to this requirement if it imposes an undue hardship by causing a significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business. However, these considerations must be able to be documented and employer’s should discuss their options with a human resources professional or an employment law attorney prior to making the decision that they are exempt from the guidelines.
For additional information on the new EEOC guidelines related to pregnancy discrimination, please contact us at www.newfocushr.com.
Note: Information for this article was taken from the article, Fact Sheet for Small Businesses: Pregnancy Discrimination, located on the EEOC’s website at http://www1.eeoc.gov .
Written by: Kristen Deutsch, M.B.A., CCP
President
7/23/2014
