Accommodating Pregnant Employees: A Refresher Course

Although several federal laws address pregnancy discrimination, employers need to be aware that it’s generally state and local rules that govern a company’s policies and actions on this important matter. With so much attention paid to the rights of pregnant employees, it’s easy for employers to assume that these workers have more protections than they actually do. On the other hand, some federal laws that affect pregnant women are broader than you might think.

The Pregnancy Discrimination Act and the Americans with Disabilities Act (ADA), for example, cover employees who

• Are pregnant,
• Could (or intend to) become pregnant,
• Have a medical condition related to pregnancy,
• Had an abortion or are considering having one, or
• Have been pregnant.

The Equal Employment Opportunity Commission (EEOC) states that “an employer may not discriminate based on past pregnancy or pregnancy-related medical condition or childbirth. For example, an employer may not fire a woman because of pregnancy during or at the end of her maternity leave.”

Basic Protections

In a summary of legal rights for pregnant women, this is how the EEOC addresses the question of whether an employee can be terminated from employment for pregnancy-related reasons: “In general terms, you cannot be fired, rejected for a promotion, given lesser assignments, or forced to take leave” for any of the categories of employees noted above. However, the EEOC also states, “An employer does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace.”

With that said, here’s an important caveat: Employers cannot fire or take any other adverse action against a pregnant employee just because you believe she may be jeopardizing her health in her current role; that call must be made by the employee herself.

What’s Healthiest?

Problem is, people — including pregnant women — are often misguided in their thinking about what kind of work conditions are unhealthy during a pregnancy.

For example, while standing all day may be exhausting and possibly harmful to a woman in the late stages of pregnancy, sitting all day at a desk isn’t generally healthy either. Some combination of work positions is probably better. Ultimately, this is a matter for your employee to take up with her doctor. But, if necessary, she should supply you with documentation regarding her special needs.

Because key aspects of the protection of pregnant women in the workplace come under the ADA, women’s rights with regard to pregnancy-related job adjustments fall under the “reasonable accommodation” framework. That is, you’re required to make a reasonable accommodation that allows the employee to perform the “essential job functions” as long as doing so won’t cause an “undue hardship” to your business. Of course, the law’s interpretations of terms such as “reasonable,” “essential job functions” and “undue hardship” are frequently tested by litigation.

Talk it Over

Before poring over thousands of pages of court opinions and interpretive regulations, consider just having a calm discussion with an employee who’s requesting some adjustment to her work conditions. “Engaging in an interactive dialogue with employees to come to a reasonable accommodation shows that employers are making a good-faith effort to comply with the law,” says a Society for Human Resource Management briefing on the topic.

The goal is to find a mutually agreeable solution and document your efforts to do so. But, if that fails and you end up losing the fight against a discrimination claim, the “good” news is that at least you won’t face punitive damages.

The quickest way to get into trouble in dealing with these situations is to neglect to train front-line supervisors on the standards for preventing pregnancy discrimination. An untrained supervisor might try to wing it in response to a pregnant employee’s request and supply the wrong answer.

Moreover, the pregnant employee might accept it at face value at the time. If she later realizes that her rights were violated and some damage was done (such as reduced wages or a physical problem), she may be more motivated to seek a legal remedy.

For employers most accustomed to dealing with accommodation requests from injured workers, here’s a quick reality check when the condition involved is pregnancy: Imagine that a third-trimester pregnant employee requesting an accommodation is instead a worker with a back injury. How would you handle this request? Would you be skeptical and refuse to reach an accommodation? Then, return to reality and apply similar thinking when dealing with a pregnancy-related accommodation request.

As with conventional disability accommodation requests, there’s no guarantee you’ll be able to grant one to a pregnant employee. In both cases, assuming your assessment isn’t challenged (or if it is challenged and you prevail), the employees will still be entitled to 12 weeks of unpaid leave over a 12-month period according to the Family and Medical Leave Act.

Requests for accommodations by pregnant employees have been around a long time and will continue to pop up. And so will questions from employers on just how to handle these situations in fairness to the requesting employee and your business. If you have any doubt that your policies regarding pregnancy and related issues are within the law, you’d be wise to talk over the matter with your trusted legal professionals.