When we think of pregnancy protection, most of us immediately think of maternity leave — the colloquial term for the 12 weeks of federally mandated unpaid leave available to new mothers under the Family and Medical Leave Act. Some employers offer pay during this 12-week period. Others offer more than 12 weeks. All covered employers are required to hold the employee’s job and reinstate her with the same benefits after the 12 weeks.
However, most employers have additional obligations to pregnant employees. The Americans with Disabilities Act requires employers with more than 15 employees to provide reasonable accommodations to pregnant employees suffering from certain pregnancy-related disabilities, unless the accommodation would be an undue hardship on the employer. These accommodations can include modified work schedules, additional leave, temporary reassignment to light duty or modifying work policies to allow more frequent breaks.
Many employers forget about another federal law that protects pregnant employees: The 1978 Pregnancy Discrimination Act. The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination based on pregnancy (past, current or potential), childbirth or related medical conditions. The Equal Employment Opportunity Commission — the agency that enforces the Pregnancy Discrimination Act — has provided specific examples of prohibited discrimination. Broadly, an employer may not deny a pregnant employee or applicant access to a job, promotion or opportunities for fear she will have physical limitations, require significant time off or impose high health care costs.
Put another way, an employer must hire, train, promote, accommodate and otherwise treat any pregnant employee who is able to perform the essential functions of her job in the same way non-pregnant employees are treated. This means an employer is prohibited from requiring a pregnant employee to undergo additional medical clearances not required of other employees.
Likewise, if an employee is unable to perform her job due to pregnancy-related conditions, her employer must treat her the same as other disabled workers (i.e. providing light duty, disability leave, etc.).
A number of additional obligations come from often-overlooked state and even city/municipal laws. In fact, most states now have pregnancy protection laws prohibiting discrimination and/or requiring specific accommodations.
Is my state one of them? Most likely, yes. The states with no additional pregnancy discrimination laws are North Carolina, Indiana and Georgia. Even in these states, employers should consider whether local ordinances impose additional regulations.
If my company complies with federal laws, are we automatically complying with state and local laws? Not necessarily. State and local laws are intended to provide additional protections, above and beyond those provided by federal laws. Thus, these laws will often cover more employers and/or require additional accommodations for employees.
An important consideration for small employers is whether state laws are applicable even where federal are not. Title VII, and therefore the PDA, applies to employers with more than 15 employees. However, 13 states and the District of Columbia all have statutes that may apply to smaller employers.
Likewise, employees may have more protections. In Minnesota, for instance, pregnant employees are not required to provide medical documentation when requesting more frequent restroom or water breaks, seating and limits on lifting more than 20 pounds. Neither can employers assert undue hardship in response to any of these requests. These are more stringent requirements than those under the Pregnancy Discrimination Act or ADA.
So, what does it mean if my state has additional pregnancy protection and anti-discrimination laws? Read your state and local laws, and consult with legal counsel about how to ensure compliance with the law.
Review your company’s light duty and reasonable accommodations policy. State and local legislation often require employers to provide pregnant employees with the same accommodations provided to employees with non-pregnancy-related disabilities, such as employees with work-related injuries and disabilities. Some local laws specifically designate the accommodations to which pregnant employees are entitled.
Include pregnancy discrimination education in management training. Supervisors and managers should know how to handle requests for accommodations from pregnant workers as they may field these inquiries before, or more often than, HR. Again, legal counsel can help you create training that covers laws in your specific jurisdiction.
How can a multistate/national employer ensure compliance with all local, state and federal laws? Adhere to the state laws in the most stringent jurisdictions. Or, create a broad policy that does not violate any federal laws and yields to state or local laws as appropriate.
Here is a sample handbook policy:
“(Your organization) is firmly committed to protecting the rights of expectant mothers and complying with Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Discrimination Act of 1978. [Your organization’s] policy is to treat women affected by pregnancy, childbirth or related medical conditions in the same manner as other employees unable to work because of their physical condition in all employment aspects, including recruitment, hiring, training, promotion and benefits. Discrimination on the basis of an individual’s sex, pregnancy, childbirth, or related medical conditions, disability or handicap, any other category protected by federal, state, or local law is a violation of this policy and will be treated as a disciplinary matter.
“Further, (your organization) fully recognizes eligible employees’ rights and responsibilities under the Family and Medical Leave Act, applicable state and local family leave laws, and the Americans with Disabilities Act. Pregnant employees may continue to work until childbirth or until they are certified as unable to work by their physician. Additionally, reasonable accommodation will be made for pregnancy, although state laws usually provide specific guidelines for accommodating pregnant applicants and employees.”
Ultimately, when in doubt, err on the side of offering reasonable accommodations — especially if the company has offered similar accommodations to any employees in the past. A few small accommodations for pregnant employees can go a long way toward maintaining employee morale, retaining valuable talent and minimizing the potential for expensive discrimination claims.