Executive Summary
Effective Date: Currently in effect.
Overview: The EEOC recently issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a Questions and Answers document about the Guidance and a Fact Sheet for Small Businesses. We have summarized below some of the more noteworthy parts of the Guidance.
Action Required: Consult your Human Resource Business Partner if a pregnant employee requires an on-the-job accommodation or a leave of absence.
The Details
The Guidance is the first comprehensive update of the EEOC’s position on discrimination against pregnant workers since 1983. This Guidance supersedes the earlier guidance and addresses the application to pregnant employees of laws passed in the past 30 years, such as the Americans with Disabilities Act (ADA) in 1990, the Family and Medical Leave Act (FMLA) in 1993, and the ADA Amendments Act (ADAAA) in 2008.
As a threshold matter, the Guidance (including the Questions and Answers document and Factsheet) reiterates that under the Pregnancy Discrimination Act (PDA) (1) an employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions; and (2) women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work. The Guidance reiterates that the ADA prohibits employment discrimination on the basis of disability and requires covered employers to provide reasonable accommodations to the known limitations of otherwise qualified employees and applicants for employment. Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. The ADA also covers pregnant workers who are regarded as having disabilities.
Specific Issues – Four Parts
Part One
Part one discusses the prohibitions of the PDA. Of particular note, part one includes the EEOC’s position that an employer policy of providing light duty only to employees with on the job injuries violates the PDA. Under the EEOC’s Guidance, an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job). This issue is currently before the U.S. Supreme Court and the court’s decision could potentially overrule the EEOC’s Guidance in the future.
The Guidance also reviews the application of the PDA to situations where an employer may have concerns about risks to a pregnant employee and takes an adverse employment action based on that perceived risk. The Guidance indicates that an employer's concern about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity and cited a Supreme Court Case in which the court explained that "[d]ecisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.”
Finally, part one discusses parental leave practices and reminds employers that for purposes of determining Title VII's anti-discrimination requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in the Guidance document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in the Guidance document as parental leave).
Leave related to pregnancy, childbirth or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
Part Two
Part Two discusses the application of the ADA’s accommodation and non-discrimination requirements and the definition of disability to pregnancy-related impairments.
Under the ADA, reasonable accommodation is a change in the workplace or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job's essential functions, or enjoy equal benefits and privileges of employment. An employer may only deny a reasonable accommodation to an employee with a disability if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense
The Guidance indicates that a pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. The Guidance provides an example of an employee that takes fatigue reducing medication and ceases to take that medication due to pregnancy. As a result, the employee requests more frequent breaks during the day. The Guidance indicates that absent undue hardship, the employer would have to grant such an accommodation.
Other examples of reasonable accommodation cited by the Guidance that may be necessary for a disability caused by pregnancy-related impairments include, but are not limited to:
- Redistributing marginal functions that the employee is unable to perform due to the disability. Marginal functions are the non-fundamental (or non-essential) job duties.
- Altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting or bending requirements).
- Modification of workplace policies.
- Purchasing or modifying equipment and devices.
- Modified work schedules.
- Granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
- Temporary assignment to a light duty position.
Part Three discusses other legal requirements affecting pregnant workers, including the FMLA; and Part Four describes “Best Practices” for employers and covers for example leave and reasonable accommodation issues.
Practical Impact
Employers should expect the EEOC to quickly move forward in implementing the Guidance through more aggressive enforcement of the ADA and PDA. Accordingly, employers must now recognize that under the Guidance, pregnant employees will be entitled to accommodation either because (1) the employer provides similar accommodations to other employees with similar abilities or inabilities to work or (2) because of the overlapping ADA requirement of reasonable accommodation. Conditions present to some degree in many pregnancies, such as nausea, balance issues and headaches for example may require accommodation in the same manner as required under the ADA.
As a trusted compliance partner we stand ready to assist our clients in navigating the complex compliance challenges posed by the guidelines.
As always, please contact your Human Resource Business Partner if you have any questions.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.