Pregnancy rights in the workplace: Know the law
The Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964, explicitly prohibits employers with at least 15 employees from sex discrimination on the basis of pregnancy. According to the U.S. Equal Employment Opportunity Commission (EEOC), an employer “may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.”
While pregnancy is not considered a disability under the federal Americans with Disabilities Act (ADA), pregnancy-related conditions such as morning sickness and back pain may qualify for protection under the ADA Amendments Act (ADAAA), which expanded the definition of “disability” in 2009. “EEOC interpretations indicate that a temporary condition that lasts more than six months could indeed be considered disabling,” notes Robin E. Shea, a partner at employment law firm Constangy, Brooks and Smith LLP in Winston-Salem, N.C.
Shea explains the effect of the ADAAA for employers:
• A pregnant employee with restrictions is arguably similarly situated to a nonpregnant employee with a nonwork-related disability, who must be reasonably accommodated if the accommodation is not an undue hardship for the employer.
• The PDA requires that the pregnant employee be treated the same as her “disabled” nonpregnant counterpart. Under this rule, if an employer accommodates an employee whose disability is a back injury that temporarily prevents the employee from lifting more than 20 pounds, for example, the employer likely must also accommodate the pregnant worker whose pregnancy temporarily prevents her from lifting more than 20 pounds. In addition, some state laws require employers to accommodate limitations arising from pregnancy.
• Therefore, even though reasonable accommodations are not required per se for pregnancy, if the employer offers reasonable accommodations to nonpregnant employees with disabilities (as it must under the ADA and ADAAA), then the employer likely has to do the same for the pregnant employee as well. Otherwise, the employer may be guilty of discrimination against the pregnant employee by offering reasonable accommodations to nonpregnant but not pregnant employees.
“Not only was a 20-pound lifting restriction generally not considered disabling, but virtually no temporary impairment, no matter how severe, was,” notes Shea of the law prior to the ADAAA.
“Now, if the employer offered light duty for other temporarily disabled employees injured for off-work activity, then the employer must provide the same for a pregnant employee.”
The ADA also states that the reasonable accommodation must not impose on the employer an “undue hardship,” a term that is difficult to pin down. “Under the ADA, we almost never rely on the ‘undue hardship’ defense because the burden is too high,” Shea says. However, “There are certain types of accommodation that just aren’t reasonable, according to the court system. For example, the Supreme Court has said that violating a seniority policy to accommodate a disabled employee or creating a new position is unreasonable.”
In addition to the ADA and the PDA, employers must be aware of how the federal Family and Medical Leave Act (FMLA) and its state equivalents extend rights to pregnant employees. The FMLA gives certain employees working for covered employers up to 12 weeks of job-protected unpaid leave during any 12-month period for the following reasons:
• Birth and care of a child.
• Placement of a child for adoption or foster care.
• Care of an immediate family member (spouse, child or parent) with a serious health condition.
• Care of the employee’s own serious health condition, including a medically complicated pregnancy.
Some states, such as California, Connecticut, Maine, New Jersey, Oregon, Washington and Wisconsin, have their own family and medical leave laws. California also has a specific pregnancy protection law that requires any employer with five or more employees to provide up to four months of job-protected disability leave for a woman who is disabled due to pregnancy, childbirth or a related medical condition. If the organization provides more than four months of leave for other types of temporary disabilities, it must provide the same amount to the pregnant woman. The law applies to women working full time and part time as of the date of hire.
A growing number of other states and local jurisdictions, such as Alaska, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Texas and New York City, have passed laws governing how employers must treat pregnant women in the workplace.
Workplace pregnancy risks
The most common problem in the first trimester of pregnancy is nausea, "especially in the food service industry, because food smells can trigger the nausea," says Marjorie Greenfield, an obstetrician and gynecologist in Cleveland. She says back pain and sciatica are common in the later months of pregnancy.
Medical opinion on what pregnant women can and should do has changed over the decades. Now, "We encourage more activity throughout the pregnancy, and, even in pregnancies with complications, we have medications that are much more effective than bed rest," says Greenfield, author of The Working Woman’s Pregnancy Book (Yale University Press, 2008).
The environments that are best suited to pregnancy are ones where the employee makes a variety of movements but is able to rest as needed, Greenfield explains.
By contrast, jobs that are not optimal are those like nursing, in which women must stand for hours and cannot control when they take breaks or eat. "Interestingly, jobs where the woman is required to sit in a small area all day are also bad for pregnancy," she notes.
In positions where there is a high risk of exposure to chemicals or radiation, the usual Occupational Safety and Health Administration practices apply. "For example, if a woman is working in a lab and must wear gloves and a mask, those precautions are adequate while pregnant, too," Greenfield says.
The most common accommodation requests she hears about are from cashiers who stand all day in one place. "A stool to sit on for short periods makes a huge difference," she says. "But many employers have policies stating that cashiers must stand, and that’s when I need to intervene." Greenfield generally recommends that women be able to sit for at least 10 minutes each hour.
Adrienne Fox is a freelance business writer in Alexandria, Va.
© 2013, Society for Human Resource Management
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NLBMDA has some words for OSHA
Citing legal concerns, the National Lumber and Building Material Dealers Association (NLBMDA) is urging the Occupational Health and Safety Administration (OSHA) to withdraw "Improved Tracking of Workplace Injuries and Illnesses," its proposed injury and illness reporting rule.
The rule would increase the frequency with which employers had to report injury and illness data (in new electronic formats), as well as treat the data as public information.
"The release of injury and illness reports could lead to mis-characterizations about an employer’s safety record," said NLBMDA president and CEO Michael O’Brien. "OSHA is proposing to release this information without context or clarifications about each incident. This creates the opportunity for, and will likely result in, misuse of the information."
Under the proposed rule, companies with more than 250 employees would have to submit reports on a quarterly basis. Those with 20 or more employees — and in high-risk industries like LBM — would have to submit the reports once a year.
O’Brien added that the public posting of the data "would punish good actors and reward bad actors by creating the incorrect presumption that employers with several reports operate with hazardous work conditions and those with few or no records are workplaces with very safe conditions. The opposite is likely to be true because employers that keep meticulous records and diligently report to OSHA are more likely to closely monitor safety conditions and quickly correct any issues that may arise at the workplace than those that fail to report."