An employer’s obligation to provide accommodations to pregnant women springs from five main legal sources:
- Americans with Disabilities Act
- Pregnancy Discrimination Act
- Family and Medical Leave Act
- State pregnancy accommodation laws
- Local pregnancy accommodation laws
The outline below presents how each governs an employer’s obligation to provide pregnancy accommodations. More information can be found in the training materials for lawyers on the [email protected] website (visit www.pregnantatwork.org) and in the legal treatise FAMILY RESPONSIBILITIES DISCRIMINATION by Calvert, Williams, & Phelan (Bloomberg BNA).
Americans with Disabilities Act, 42 U.S.C. §12101 et seq., Regulations, 29 C.F.R. Part 1630
- Applies to employers of 15 or more
- Prohibits employment discrimination because of an employee’s actual or perceived disability; a failure to accommodate an employee’s disability is discrimination under the 42 U.S.C.
- A disability is a physical or mental impairment that substantially limits a major life activity. 42
- The ADA was substantially amended in 2008 to broaden the interpretation of this definition of disability. Pub. L. No. 101-325, 122 Stat. 3553 (2008) (“ADAAA”). The amendment was intended to broaden the coverage of the statute. As a result, many pregnancy-related conditions that were not covered by the ADA prior to the amendments are now covered and must be accommodated under that law. See, e.g., Alexander v. Trilogy, 2012 U.S. Dist. LEXIS 152079 (S.D. Ohio 23, 2012) (granting plaintiff’s motion for summary judgment and holding that
preeclampsia is a disability under the ADAAA); Price v. UTi Integrated Logistics, 2013 U.S. Dist. LEXIS 142974 (E.D. Mo. Oct. 3, 2013) (denying employer’s motion for summary judgment because complications related to pregnancy can be disabilities under the ADAAA; at trial, jury found for the employer). Thus, many of the ADA cases involving claims that employers did not accommodate employees who had pregnancy-related disabilities that were brought under the old version of the statute are no longer good law. Nayak v. St. Vincent Hosp. & Health Care Ctr., 2013 U.S. Dist. LEXIS 3273 (S.D. Ind. Jan. 9, 2013). Following the amendments, the appropriate inquiry for most disability cases is not whether the employee has a disability, but whether the employer has reasonably accommodated the disability.
- There are three changes ushered in by the ADA Amendments Act that expand the interpretation of “disability” so that it now includes pregnancy-related impairments:
- First change: The ADAAA broadened the interpretation of the term “major life ”
- The ADAAA provides a non-exhaustive list of the types of activities that could be considered major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. §12102(2)(A). The EEOC added to this: sitting, reaching, and interacting with others. 29 C.F.R. 1630.2(i)(1)(i).
- The ADAAA added that major life activity also includes “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive ” 42 U.S.C. §12102(2)(B). This is a also a non-exhaustive list. The EEOC regulations added skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions. 29 C.F.R.
- This change brings many pregnancy-related conditions within the definition of “disability.” For example, a high risk pregnancy involves the operation of the reproductive function, swelling of the feet involves the operation of the cardiovascular system (and additionally may affect the employee’s ability to stand and walk).
- Second change: the ADAAA significantly weakened the requirement that the employee’s impairment “substantially limit” a major life activity by providing that the term not be construed to create a demanding standard or to require that an impairment severely restrict an employee from doing certain activities. 42 U.S.C. §12102(4)(A) & (B). Now, the employee
must show only that she is limited in an activity as compared to most people in the general population. 29 C.F.R. §1630.2(j)(l)(ii).
- Third change: Prior to the ADAAA, an impairment of short duration was not considered a disability for the purpose of making a claim that an employee had a disability that was not accommodated. The ADAAA eliminated this bar on impairments of short duration. See 42
U.S.C. §12102 (excluding from definition of “disability” impairments that are transitory or
minor only for disabilities arising under “regarded as” prong, but not actual disability prong). (Note the duration requirement remains in place for the “regarded as” prong, but that prong is not relevant to the question of whether an employee was denied a reasonable accommodation to which she was entitled.) See 42 U.S.C. §12102(3)(B). The regulations provide that the effects of an impairment expected to last fewer than six months can be substantially limiting. 29 C.F.R. §1630.2(j)(1)(ix). The duration of an impairment is still one factor that courts can consider in determining if an employee has a disability. 29 C.F.R. Part 1630 App. §1630.2(j)(1)(ix).
- Pregnancy by itself is not a disability. 29 C.F.R. Part 1630 App. §1630.2(h). Many conditions that commonly accompany pregnancy, however, may be disabilities. Id. Migraine headaches, carpal tunnel syndrome, gastrointestinal acid reflux, urinary incontinence, fatigue, back pain, hypertension, gestational diabetes, and pre-eclampsia are examples of such conditions that could meet the definition of disability. Morning sickness may also meet the definition, particularly if it is prolonged or severe. See A Cool Sip of Water: Pregnancy Accommodation After the ADA Amendments Act, Joan C. Williams, Robin Devaux, Danielle Fuschetti, and Carolyn Salmon, 32 Yale Law and Policy Rev. 1, 97-148 (2013), available at http://worklifelaw.org/wp-content/uploads/2014/07/A-Sip-of-Cool-pdf.
- An employer is required to provide a reasonable accommodation that will enable the employee with a disability to work, unless it would create an undue hardship for the employer to do so. 42 U.S.C. 12112(b)(5).
- A reasonable accommodation is a change to how, when, or where an employee works, and it enables the employee to perform the essential functions of her job. 29 C.F.R. Part 1630
- 1630.2(o). Employers are not required to remove or change essential functions of the job, but they may be required to remove or change marginal functions. EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. In practice, however, employers often do remove or change essential functions on a temporary basis. See below for reasonable accommodations commonly provided for pregnancy-related conditions.
- Once an employee requests an accommodation, or when the employee’s need for an accommodation is obvious, the employee and employer engage in an informal, interactive process to determine an accommodation that would be reasonable and effective, and that
would not create an undue hardship on the employer. EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), available at http://www.eeoc.gov/policy/docs/accommodation.html; see, e.g., EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009).
- The employer may ask the employee and/or the employee’s health care provider for more information, such as the nature, severity, and duration of the impairment and the extent to which it limits the employee’s ability to perform an The employer can also ask for information about the requested accommodation(s) to determine their feasibility, and can offer suggestions for accommodations. The employer and employee should discuss the options and try to reach an agreement as to the accommodation that will be provided. Id.
- Although an employee may be entitled to an accommodation, she is not entitled to her preferred accommodation. If more than one accommodation would be effective and reasonable, the employer may choose the one it will provide. Id.
- The employee’s need for an accommodation may change over time, and it may be necessary for the employer and employee to engage in another interactive process to determine a new accommodation or to revise the existing accommodation. Id.
- Employers and employees are encouraged to look for creative solutions, and to focus on the outcomes of the work, rather than the methods of performing essential tasks. For example, if they focus on the essential task of moving boxes from one location to another, rather than focusing on whether the employee can lift the boxes, they can think about whether carts or dollies or other methods can be used to move the Good suggestions for accommodations for various pregnancy-related conditions are available at [email protected]’s Workable Accommodation Ideas. For expert consultation on workplace accommodations, contact the Job Accommodation Network at www.askjan.org.
- Common accommodations for pregnant women include:
- Additional or longer breaks to use the restroom, consume water or food, check blood sugar, or rest
- A chair to sit on
- Modification of equipment, such as raising or lowering machine height
- Job restructuring to remove nonessential tasks that she can no longer do, or that she can do but only with difficulty or pain
- Time off for medical appointments
- Schedule changes, such as arriving and departing later to deal with morning sickness. Schedule changes could also include working fewer hours, or taking several hours off in the middle of the day to
- Lifting assistance
- Light duty
- Work from home. Whether working from home is a reasonable accommodation will depend on a fact specific inquiry into whether the employee’s job duties can be performed remotely, whether others are allowed to work from home, how she would be supervised, and the
- Reassignment may be reasonable if no other accommodation will allow the employee to work. 29 C.F.R. Part 1630 App. 29 C.F.R. §1630.2(o). The employer does not have to create a position for the employee, or move an employee already in the position, and the employer does not have to transfer the employee if she does not have the requisite skills or certifications. Once the need that caused the transfer has ended, the employee is to be reinstated to her original position.
- If no accommodation that will allow the employee to continue to work is possible, then leave may be a reasonable accommodation. EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), available at http://www.eeoc.gov/policy/docs/accommodation.html; e.g., Robert v. Board of Cnty. Comm’rs of Brown Cnty., Kan., 691 F.3d 1211, 1217–18 (10th Cir. 2012); Dark
- Curry Cnty., 451 F.3d 1078, 1090 (9th Cir. 2006). Open-ended leave is not reasonable, however. The employee’s health care provider should be able to provide an estimate in the near future as to when the employee will be able to return to work in order to make the leave reasonable. The leave may be unpaid, although employees should be permitted to use accrued vacation and sick leave to receive pay while out of work. When the employee is able to return to work, she is to be restored to her original position, unless to do so would create an undue hardship for the employer.
Employers may not be able to require an employee to take leave if she is able to work and wishes to continue to work. See Pregnancy Discrimination Act, below. If an employee wishes to take leave, even if her employer does not want her to, she may be entitled to do so under other statutes such as the FMLA or state pregnancy accommodation laws, also discussed below.
When an employee has exhausted her FMLA leave and cannot return to work because of a disability, additional leave may be a reasonable accommodation under the ADA. EEOC, Fact Sheet: The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, available at http://www.eeoc.gov/policy/docs/fmlaada.html.
Pregnancy Discrimination Act
42 U.S.C. §2000e(k), EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues, http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
- First clause of the PDA: “The terms 'because of sex' or 'on the basis of sex' include [under Title VII], but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . .” Meaning: Discrimination based on sex is prohibited; “sex” includes pregnancy, childbirth, and related medical conditions. Therefore employers cannot discriminate against pregnant employees because they are pregnant.
- If employers provide accommodations to non-pregnant employees, such as flexible schedules, reduced hours, light duty, and transfers, they cannot refuse to provide similar accommodations to pregnant employees because the employees are pregnant. EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues, available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
- An employer cannot try to force a pregnant employee to quit by refusing to accommodate her because she is pregnant.
- An employer cannot force a pregnant employee to take leave when she is able to work simply because she is pregnant or based on stereotypes or assumptions about pregnant women. Id.
- Second clause of the PDA: “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . .” Meaning: Pregnant women are to be treated the same as other employees who are similar in their ability or inability to work.
- An employer that provides an accommodation, such as light duty, to non-pregnant employees must provide the accommodation to pregnant employees unless it has a strong, legitimate reason (other than cost or convenience) for treating the pregnant employees differently. Young v. UPS, 135 S.Ct. 1338 (2015).
- An employer cannot force a pregnant employee to take leave when she is able to work if it allows non-pregnant employees to work when they are able to work. (Both the first and second clauses prohibit this.) EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues, available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
- An employer cannot overlook a non-pregnant employee’s noncompliance with attendance or work rules but discipline a pregnant employee for violating the rules, such as allowing a nonpregnant employee to arrive to work late with no penalty but disciplining a pregnant employee for being late.
- If an employer that does not have a maternity leave policy provides leave to non-pregnant employees due to medical conditions, it may need to provide leave to pregnant women due to medical conditions, including pregnancy-related conditions, childbirth, and recovery.
Family and Medical Leave Act
29 U.S.C. §§2601–2654, FMLA Regulations, 29 C.F.R. Part 825
- Pregnant employees who work for a covered employer and who are eligible for FMLA leave may be entitled to leave as an 29 C.F.R. §825.203(c)(1). Leave is not discretionary; if the employee meets the criteria, she is entitled to leave. Leave may be taken on an intermittent or reduced schedule basis. 29 U.S.C. §2612(b)(1). Leave may be taken for prenatal medical appointments, morning sickness, pregnancy-related conditions, and in the final weeks of pregnancy.
- Prenatal use reduces the amount of FMLA time available for childbirth and baby bonding. If the employee is not able to return to work at the end of her 12-week allotment because of a physical or mental impairment that substantially limits a major life activity, she may be entitled to additional leave as a reasonable accommodation under the ADA (see I. above), unless the additional leave would create an undue hardship for the employer.
- After leave, the employee is to be reinstated to the same position or a substantially equivalent position. 29 U.S.C. §2614(a); 29 C.F.R. 825.214.
- State or local family and medical leave laws may require additional leave benefits and may apply to individuals not covered by the federal FMLA.
A state employee who is pregnant may request a transfer to a suitable position if her health care provider recommends the transfer, the transfer is to an existing and vacant position, and she is qualified to perform the duties of the position. Alaska Stat. § 39.20.520.
- An employer of five or more employees is required to provide a reasonable accommodation for an employee with a condition related to pregnancy, childbirth, or a related medical condition, when requested and with the advice of the employee’s health care provider. Cal. Gov’t Code
- If an employer has a practice or policy of transferring temporarily disabled employees to less strenuous or hazardous jobs, then the employer must similarly transfer a pregnant employee if she so Cal. Gov’t Code §12945(a)(3)(B). Even if the employer does not have such a practice or policy, if a pregnant woman requests, with the advice of her physician, a temporary transfer to a less strenuous or hazardous position for the duration of her pregnancy and the transfer can be reasonably accommodated, then the employer cannot refuse. Cal. Gov’t Code §12945(a)(3)(C).
- Implementing regulations provide that employers must accommodate employees with pregnancy-related disabilities regardless of the length of time they have worked for the employer. Cal. Code Regs. tit. 2, §11037. Reasonable accommodations include any change in the work environment or the way a job is done that allows an employee who is affected by pregnancy to perform the essential functions of her Cal. Code Regs. tit. 2, §11035(s). There is no undue hardship defense.
- Employees disabled by pregnancy, childbirth, or a related medical condition are eligible for up to four months of pregnancy disability leave per pregnancy (not per year). Cal. Code Regs. tit. 2, §11042(a)(1). Pregnancy disability leave may be taken in addition to the 12 weeks of leave provided by the FMLA and/or CFRA. Employees may be entitled to additional leave as a reasonable accommodation. Sanchez v.Swissport, Inc., 213 Cal. App. 4th 1331 (2013).
- An employer may require medical certification of the need for Cal. Code Regs. tit. 2, §1042 (c).