Pregnancy is a game changer for women, a time when they must ponder whether to keep climbing the job ladder as before or scale back on work obligations. And it can lead to a host of pregnancy-related conditions covered not only by the Family and Medical Leave Act (FMLA), but also now the Americans with Disabilities Act (ADA)—thanks to the ADA Amendments Act’s (ADAAA) expansion of what is considered to be an ADA disability.
In fact, women do “not need to have any complications to be protected by the FMLA,” notes Megan Norris, an attorney at Miller Canfield in Detroit, since pregnancy itself is defined by the law to be, rather than a joyous event, a “serious health condition.”
“She can take time off for prenatal appointments, for morning sickness, for any pregnancy-related conditions, including the need for bed rest due to concerns about premature birth, as well as for the disability that usually begins in the weeks just before birth and extends at least six weeks after birth. All of this is covered by the FMLA,” she remarked. “New mothers also can take time off for care of the newborn child. However, because the total FMLA leave allotment is only 12 weeks, any time taken off for the pregnancy prior to birth will cut into the time allowed after the birth.”
Employers shouldn’t go overboard with accommodating pregnant employees, though. A frequent mistake employers make with pregnant employees is forcing them to go on leave, even when the workers can perform their jobs, noted Anne Larson, an attorney with Ogletree Deakins in Chicago.
Sometimes employers mistakenly require a pregnant employee to remain on leave until the baby’s birth, even after she has recovered from the pregnancy-related condition that initially affected her ability to work, Larson added.
Baby bonding is available under the FMLA as well, but unlike leave for a serious health condition, baby bonding leave does not have to be provided intermittently, observed Joan Casciari, an attorney at Seyfarth Shaw in Chicago, in an interview with SHRM Online. Nevertheless, it may be, and sometimes such leave “actually benefits the employer,” she added.
“Among the mistakes I see are employers who forget that leave can be taken intermittently during the pregnancy and assign attendance points to employees who are too ill to come to work or who come to work late,” Casciari said. “I also have seen employers who are unwilling to consider light duty for pregnant employees even where it is available. While an employer generally does not have to allow light duty for pregnant employees where light duty is reserved for work-related conditions, where temporary light-duty jobs are available, they should be considered.”
So what if the pregnant woman runs through all of her FMLA leave before she has recovered from pregnancy-related conditions? What if she hasn’t worked for a year or the requisite 1,250 hours within a year? What if she doesn’t work at a location with 50 or more employees? She still might be entitled to leave as a reasonable accommodation under the ADA if she has pregnancy-related impairments that rise to the level of a disability.
“Prior to the ADAAA, pregnancy-related conditions may not have qualified as covered disabilities,” Larson said. Now a wide range of pregnancy-related physical impairments may qualify as covered disabilities, since the bar for ADA disabilities has been lowered. Such ADA-qualifying disabilities might include high blood pressure, severe morning sickness, gestational diabetes, preeclampsia, post-partum depression and uterine fibroids causing risk of premature labor.
In April 2013, the EEOC settled a case involving pregnancy-related disability with an employer that failed to engage in the interactive process with an employee to accommodate her severe nausea and vomiting by moving her office closer to a restroom, Casciari pointed out.
“Another tricky issue is what to do when the applicant is pregnant and will obviously need a leave of absence shortly after being hired,” she said. “There is no easy answer to this issue, but clients are often blindsided by this set of facts. Or they discover the pregnancy after onboarding and training the new employee.”
Pregnancy without any complications is not covered by the ADA, the EEOC notes in its Technical Assistance Manual to Title I of the ADA, so the answer may vary from new employee to new employee. (Title I is the part of the law that applies to private-sector employers.)
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
© 2013, Society for Human Resource Management.
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