Pregnancy Accommodation Laws Overview Federal statutes requiring some form of pregnancy accommodation Americans with Disabilities Act as amended eff 2009 Pregnancy Discrimination Act of 1978 Family and Medical Leave Act of 1993 ID: 920092
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Slide1
The Employer’s Guide to Pregnancy Accommodation Laws
Slide2OverviewFederal statutes requiring some form of pregnancy accommodationAmericans with Disabilities Act, as amended eff. 2009
Pregnancy Discrimination Act of 1978
Family and Medical Leave Act of 1993
State and local statutes
Slide3The Americans with Disabilities Act and Pregnancy Accommodation
Slide4Americans with Disabilities ActApplies to employers of 15 or more employeesSmaller employers may be covered by state anti-discrimination laws
Definition:
A disability is a physical or mental impairment that substantially limits a major life activity.
Slide5Amendment Changes EverythingThe ADA was amended effective in 2009. The amendment did not change the definition of “disability,” but it changed its interpretation.
Purpose of amendment:
To make it easier for employees with disabilities to be protected by the ADA
Three changes are key to pregnancy accommodation
Slide6Old (pre-amendments): Very restrictive definition of disability; few conditions found to be disabilitiesNow
: Expansive definition of disability; many medical conditions qualify as disabilities
Slide7First Change Stemming from Amendments: “Major Life Activity”
ADA now has non-exhaustive list of major life activities:
“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
EEOC added: sitting, reaching, and interacting with others
AND now “major life activity” includes major bodily functions
the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions
EEOC added: special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions
Slide8Second Change Stemming from Amendments: “Substantially Limits”Old: Courts held that employee’s ability to engage in a major life activity had to be severely impacted before the employee could be deemed to have a disability
New: “substantially limits” is not a demanding standard, does not require a severe restriction
means that the employee is limited in a major life activity as compared to the general population
Slide9ExampleMaria is in her fifth month of pregnancy. She gets frequent migraines because of her pregnancy. Does she have a disability?
Old: Probably not.
Now: Probably yes. The migraines are an impairment, and they affect a major bodily function (neurological system, brain; also affects ability to concentrate) in a way that limits Gina as compared to the general population.
Slide10Third Change: No Duration Requirement
Old: Disabilities that were short in duration (usually less than six months) were not considered within the ADA’s coverage
New: Temporary conditions may be disabilities
Duration is a factor, but not a bar
Exception: impairments that are
both
transitory and minor may not be disabilities
for “regarded as” ADA claims
(
not
relevant to accommodation claims)
Slide11Application to PregnancyFirst Step: Is There a Disability?
Under both the old version of the ADA and the new amended version, pregnancy alone is not a disability.
However, now EEOC regulations recognize that a
pregnancy-related impairment
that substantially limits a major life activity is a disability. 29 C.F.R. § 1630.2(h).
Example: gestational diabetes
Slide12Example: Pregnancy-Related ImpairmentPregnant employee cannot stand for eight hours because her feet are very swollen, which causes pain and numbness
Old: No disability
Now: Disability would likely be found
the ability to stand is a major life activity
(additionally, swelling involves the cardiovascular system)
she is limited compared to the general population in her ability to stand; temporary nature of impairment is no longer a bar
Slide13Effect of AmendmentsShifted the focus from whether the employee has a disability to whether the employer has accommodated the employee
Example: Wanamaker v. Westport – teacher requested accommodation after injury in childbirth made it difficult for her to stand. She was allegedly terminated when the parties could not agree on an accommodation.
Initially, motion to dismiss ADA claim granted because she was not disabled
Amended complaint included allegations of impairment of major life activities of standing and walking
In summary judgment motion, employer conceded disability and focused on whether it had accommodated her
Slide14Second Step: Duty to AccommodateEmployers have a duty to provide reasonable accommodations to employees with disabilities, unless to do so would create an undue hardship.
Failure to accommodate is disability discrimination under the ADA.
Slide15Reasonable AccommodationModification of how, when , where employee works
Enables the employee to do the essential functions of her job
Employers do not have to remove or change essential functions (but can)
Does not have to be the accommodation the employee prefers
Employee is to be returned to original position once accommodation is no longer needed
Slide16Procedure: TriggerThe employer’s duty to provide a reasonable accommodation is triggered by
Employee’s request
no special language needed
expression of difficulty or needing help is enough
-Obvious need for accommodation
Slide17Procedure: Interactive ProcessRequest triggers duty to engage in “interactive process”
It’s an informal process
Employee describes what she is having difficulty doing
Employer and employee explore different options for making it possible for her to do her job
Back and forth direct communication is contemplated
Lack of information is not a defense unless employer attempts to get information and employee thwarts attempts
Slide18Procedure: Medical InformationEmployers can ask for medical information necessary to determine whether the employee has a disability.
Request for information has to be limited to establishing the disability and the need for an accommodation.
Tip: JAN (Job Accommodation Network) has a sample medical information form:
http://askjan.org/media/medical.htm
Third Step: Undue Hardship“An action requiring significant difficulty or expense,” considering
(1) the nature and cost of the accommodation needed;
The financial resources of the facility or facilities, or the impact otherwise of such accommodation upon the operation of the facility;
(3) employer’s finances, the number of its employees; the number, type and location of its facilities; and
the type of operation or operations of the employer
Impact on other employees.
Burden on the employer to prove, must complete cost/benefit analysis
Slide20Types of Reasonable Accommodations
Bathroom breaks
Breaks for rest or water
An accessible worksite
A chair to sit on
Modification of equipment,
test,
or training materials, or policies
Time off for
medical
appointments
Job restructuring
Slide21More Types of Reasonable Accommodations
Lifting restrictions
Most common request
Look for creative
solutions by focusing on essential function (
e.g
., function = moving boxes, so use cart or dolly)
Schedule changes
Helpful
to deal with morning sickness, fatigue
Slide22More Types of Reasonable Accommodations
Light duty
- Do not have to create position
- Cannot limit it to workers comp/on the job injuries any longer (post-
Young v. UPS
)
Transfer
or reassignment
- Reasonable
if no other accommodations would allow her to work
-
Do
not have to create position or move employee already in position
- Employee has to have requisite skills
Slide23More Types of Reasonable AccommodationsWork from home
Might not be required (fact specific inquiry about
job duties, whether others work from home, etc.)
Many employers allow it
Leave
Cannot force employee to take leave
Reasonable only if no other accommodation
Can be unpaid after exhaustion of accumulated paid leave
Lengthy or open-ended leave not reasonable
Slide24Putting the ADA to Work: Is Accommodation Required for These Pregnant Workers?
Slide25Meet GinaGina is experiencing swelling, which has caused carpal tunnel syndrome. She has asked for breaks from repetitive tasks that use her hands, and for breaks to use ice packs to reduce the swelling.
Her supervisor tells her to use her regular morning, lunch, and afternoon breaks, and denies her request to change her duties or extend her breaks.
Slide26Does She Have a Disability?Carpal tunnel is a physical impairment that affects the major life activity of performing manual tasks May also limit lifting, reaching, cardiovascular system and musculoskeletal system
She is limited compared to people without CTS
Answer: Yes
Slide27What about Accommodation?Gina wants to take breaks from repetitive tasks and have breaks to ice her wrists. Both are probably reasonable; employer could start by offering one accommodation and see if the second is necessary. Breaks can be unpaid.
Slide28Meet JessicaJessica is experiencing severe morning sickness. She has already been hospitalized once for dehydration, and she still can’t eat. She told her supervisor that she feels too weak to work, but she has used up all of her sick days.
Her supervisor warned her that, under the attendance policy, she will be fired if she misses more time.
Slide29Does She Have a Disability?Severe morning sickness affects eating, concentration, and other major life activitiesIt also affects the gastrointestinal system.
Note that casual morning sickness may not be a disability (question is whether it is limiting as compared to the rest of the population)
Answer: Yes
Slide30What about Accommodation?Jessica told her supervisor she felt too weak to work, which was a request for an accommodation and the employer should have started the interactive process.
Allowing her to miss work (leave) may be a reasonable accommodation, but the employer should first see if there is another accommodation (schedule change, naps during the day) that would allow her to work.
She may also be eligible for FMLA leave.
Slide31Meet JuliaJulia is five months pregnant with a high risk pregnancy.
She needs assistance lifting patients.
Her supervisor denies her assistance and tells her she has to take FMLA leave if she can’t do her job.
Slide32Does She Have a Disability?High risk pregnancy affects the reproductive system
She is limited compared to the rest of the population
Answer: Yes
Slide33What about Accommodation?Julia asked for lifting assistance. The supervisor should discuss alternatives with her (assistive devises, co-worker help, light duty).
Forcing her out on FMLA leave is asking for a lawsuit unless there are no other options.
Note that if she exhausts her FMLA leave while she is still disabled, she cannot be fired because leave with a set end date may be a
reasonable accommodation.
Slide34The Pregnancy Discrimination Act and Pregnancy Accommodation
Slide35Pregnancy Discrimination ActApplies to employers of 15 or more
First Clause: Unlawful “sex” discrimination under Title VII includes discrimination based on pregnancy, childbirth, and related medical conditions
Second Clause: Requires employers to treat pregnant employees the same as other employees who are similar in their ability or inability to work
Can treat pregnant employees better, just can’t treat them worse
Slide36PDA in ActionEmployers cannot refuse to hire an applicant because she is pregnant or because she is going to need to take maternity leave
Employers cannot fire an employee because she is pregnant or will need to take a leave, or because customers will object to her appearance
Employers cannot apply workplace rules more harshly to pregnant employees to make them quit or to justify terminating them or to punish them for getting pregnant
Slide37Accommodating Pregnant Employees:Young v. UPS (U.S. Supreme Court, 2015)
Pregnant UPS driver had lifting restrictions. UPS had policy of accommodating employees with on the job injuries and other employees, but not pregnant employees.
Supreme Court: Plaintiffs can proceed with their lawsuits if they show that pregnant women are burdened by an employer policy that does not accommodate pregnant women and the employer’s reasons for the policy are weak.
Cost and convenience are
not
acceptable reasons for not accommodating.
Slide38Lessons from YoungEmployers that provide accommodations to nonpregnant employees are required to provide similar accommodations to pregnant employees who have similar limitations on their ability to work, unless the employer has a
strong
,
legitimate, and nondiscriminatory reason for treating the nonpregnant employees differently.
Employer’s reason must be sufficiently strong to justify any significant burden on pregnant women.
Policies
limiting light duty to
on the
job injuries are
likely not
going to pass muster.
Slide39Putting the PDA to WorkSandra is fatigued because of her pregnancy. She has trouble arriving to work on time because she frequently oversleeps. She asked to adjust her hours so she can come in later and leave later, but her supervisor said no and disciplined her.
Sandra complains to HR, noting that the company has a flexible work policy and plenty of other people work flexible hours. She also notes that others who come to work late are not disciplined.
Is this discrimination?
Slide40Putting the PDA to Work (cont.)Answer: Probably yes.Sandra’s employer has a flexible work policy and allows others to work flexibly, so it would have to have a strong, legitimate, non-discriminatory reason for not allowing her to flex her hours.
Disciplining Sandra for coming in late when others come in late and are not disciplined may be discriminatory if the others and Sandra are similarly situated. Note that after the
Young
decision, they do not have to be similar in all respects.
Slide41The Family and Medical Leave Act and Pregnancy Accommodation
Slide42Family and Medical Leave ActApplies to employers with 50 or more employees
Employees are eligible if
They work at a location with more than 50 employees in a 75 mile radius
They have been employed by employer for 12 months (need not be consecutive)
They have worked at least 1250 hours in the prior year
They have not already exhausted their FMLA time for the prior year
Slide43Family and Medical Leave Act The FMLA allows pregnant women to take time off for:
Prenatal visits
pregnancy-related conditions (including morning sickness)
childbirth/recovery/bonding
Leave is limited to a total of 12 weeks per year.
Intermittent leave may be taken
Prenatal use reduces post-childbirth maternity leave.
Slide44The FMLA (cont.)Employees cannot be retaliated against for requesting or taking leaveEmployees who take leave under the FMLA have to be reinstated to their same jobs or substantially equivalent jobs
Employees must give at least 30 days’ notice of need for leave, unless not possible (unforeseen)
The FMLA: Medical CertificationEmployers can request medical certification
Permitted, not required
For bonding time: can request documentation of birth or adoption
Employers cannot ask for doctor’s note when she announces
pregnancy
Have to treat pregnant employees the same as non-pregnant employees (PDA)
Employers cannot ask for note clearing her to return unless ask of all returning employees
Slide46More about the FMLADC and California allow “leave stacking” – pregnant employees can use FMLA medical leave for their pregnancy-related illnesses and still have their full state law family leave for baby bonding
If an employee cannot return at the end of leave for physical or mental conditions that are disabilities, the ADA may require additional leave as a reasonable accommodation
Slide47State Laws and Pregnancy Accommodation
Slide48States With Pregnancy Accommodation Laws
Alaska
California
Connecticut
Delaware
Hawaii
Illinois
Iowa
Louisiana
Maryland
Minnesota
Nebraska
North Dakota
New Jersey
Rhode Island
Texas
West Virginia
Slide49Local Jurisdictions with Pregnancy Accommodation Laws
New York City
Philadelphia
Providence, RI/Central Falls, RI
Washington, DC
Slide50Example: California
It's illegal in California for an employer to refuse to provide reasonable accommodations to an employee for a condition related to pregnancy, childbirth, or related medical conditions.
Californians can also receive a transfer to a less strenuous or hazardous position, if the request is reasonable.
Cal.
Gov
’
t Code §§ 12945(a)(3)(A); (a)(3)(C).
50
Slide51Example: Connecticut Employers have to try to transfer pregnant employees if their current position puts the employee or fetus at risk of injury.
Conn. Gen. Stat. § 46a-60(a)(7)
Slide52Example: PhiladelphiaIn 2014, Philadelphia passed an ordinance that requires employers to provide reasonable accommodations to employees for needs related to pregnancy, childbirth, or a related medical condition, so long as such accommodations will not cause an undue hardship to the employer.
Phila
. Code § 9-1128.