• Julie Lundy

Pregnancy and Maternity Laws and Rights



Tara Goldenberg, Chief People Officer at Privia Health, and panelist at Climbing the Corporate Ladder Baby Step by Step shared pregnancy and maternity laws and protections with attendees.

Tara read through it all and shared the details of the law for you below, so you don't have to!


Pregnancy Discrimination

The Pregnancy Discrimination Act prohibits an employer from discriminating against an employee or applicant on the basis of pregnancy in all aspects of employment. This includes: hiring, termination, pay, promotions, benefits, job assignments or any other aspect of employment.

Pregnancy Discrimination Act (PDA)

In 1978, Title VII of the Civil Rights Act of 1964 was amended to include the Pregnancy Discrimination Act, prohibiting discrimination on the basis of pregnancy, childbirth or related medical conditions. Under Federal law, pregnant women, or women who have conditions related to pregnancy must receive the same fair treatment as other employees. Discrimination on the basis of pregnancy, medical conditions related to pregnancy, or childbirth constitutes unlawful sex discrimination under Title VII.

Title VII (and the PDA) covers employers with 15 or more employees (including state and local governments).

Hiring

An employer may not refuse to hire an individual because she is pregnant, or because she has a pregnancy­ related condition. However, an employer may lawfully consider any limitations imposed by the pregnancy on the applicant's ability to perform the essential job functions of the position sought.

Practical Example

During the hiring process an employer learns an applicant is four months pregnant. The employer may not refuse to hire the applicant because of the pregnancy. However, if the applicant is subject to lifting restrictions due to the pregnancy which prevent her from performing essential job functions, the employer may refuse to hire her on that basis.

An employer should not assume an applicant is unable to perform certain job functions due to pregnancy.

Pregnancy and Maternity Leave

Under the Pregnancy Discrimination Act, an employer may not treat employees with pregnancy­ related conditions differently than other individuals who are unable to work.

Practical Example

If an employer requires employees to submit written documentation from a treating physician prior to granting sick leave or job modifications, the employer may require a pregnant employee to submit the same type of documentation.

If an employee is temporarily unable to perform her job due to pregnancy, she must be treated similarly to other employees with temporary disabilities. For example, if a pregnant employee is restricted from lifting a certain amount of weight, an employer must accommodate this restriction to the same extent it accommodates other temporarily disabled employees such as providing light duty, shifting certain job duties to other employees or permitting a temporary transfer to a vacant position.

Job Safety and Modification

An employer may not modify a pregnant employee's job duties on its own due to health and safety concerns. Employers should not assume a pregnant employee has certain restrictions or would prefer certain job modifications. Likewise, an employer cannot require an employee to move to a different position because of its prejudices against pregnant employees, including the prejudices of co­workers or customers.

Health Insurance Benefits

Any health insurance benefits provided by an employer must cover pregnancy related conditions on the same basis and costs as for other similar conditions. In addition pregnancy­ related expenses must be reimbursed in the same manner as other conditions. Employers must also provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Under the law, pregnancy is considered a temporary disability, as are related medical conditions such as severe morning sickness, doctor­ ordered bed rest, childbirth, recovery from childbirth or any other related conditions. Employers must therefore treat pregnant employees similarly to other employees with temporary disabilities.

Other Benefits

Pregnancy ­related benefits may not be limited to married employees.

Harassment

It is also unlawful under the Pregnancy Discrimination Act to harass a woman because of pregnancy, childbirth or medical conditions related to pregnancy or childbirth. Harassment violates the law when it becomes so severe and pervasive that it creates a hostile or offensive working environment that results in an adverse employment decision. The harasser can be a supervisor, co­worker or someone who is not an employee such as a client or customer.

Retaliation

Under Title VII of the Civil Rights Act of 1964, retaliation against an employee for opposing pregnancy­ based discriminatory practices, registering a complaint, testifying against an employer, or being involved in litigation or an investigation, is against the law.

Remedies

An employer that discriminates against an employee or applicant because of pregnancy can be liable for the following:

  • Back pay

  • Reinstatement

  • Front pay

  • Compensatory damages (emotional distress)

  • Punitive damages

  • Other damages or remedies to make the employee or applicant "whole" including attorneys' fees and costs.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides eligible new parents(including foster and adoptive parents), with up to twelve weeks of unpaid leave to care for the new child.

In order to be eligible for leave under the FMLA:

  • The employee must have worked for the employee for twelve months;

  • The employee must have worked a minimum of 1250 hours in the twelve months prior to the taking of FMLA leave;

  • The employer must employ at least 50 employees within a 75 mile radius.

Under the FMLA, leave for the birth or placement of a child must be taken within one year of the child's birth or placement. While leave under the FMLA is generally unpaid, an employer may require or allow eligible employees to utilize accrued vacation and/or sick leave or offer other short term disability benefits for all or a part of the twelve weeks of leave.

Following FMLA leave, the employee is entitled to be reinstated to the same position she held prior to the leave or its equivalent.

The FMLA also prohibits employers from discriminating against or retaliating against an employee for requesting or taking FMLA leave.

Nursing Mothers and the Fair Labor Standards Act

In 2010, the Fair Labor Standards Act (FLSA) was amended to include break time requirements for nursing mothers. Under the new Act, employers are required to prove reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child's birth.

Employers must also provide a private location, which is not a bathroom, where an employee can express breast milk free from intrusion. The location may be a space temporarily created for the nursing mother so long it is private and free from intrusion.

Undue Hardship

Employers with fewer than 50 employees may be exempt from this provision if it creates an undue hardship. Undue hardship is determined by looking at factors such as difficulty and expense to a specific employer as compared to its size, resources, and nature of the employers' business.

Paid Breaks

Employers are not required to pay nursing mothers for break time spent expressing milk. However, if an employer already provides paid break periods to other employees, an employee who utilizes the break period to express milk must be similarly compensated.

Pregnancy/Breast Feeding Break Accommodations

Affordable Care Act

The Affordable Care Act requires employers to provide a "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." To facilitate this break time, employers must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." The law became effective March 23, 2010. P.L. 111­148. The PPACA's breast feeding requirements were incorporated into the Fair Labor Standards Act (FLSA). Thus, an aggrieved employee would bring suit for a breast feeding break violation under the FLSA.

EEOC Guidance on Pregnancy

In 2014, the EEOC released updated Enforcement Guidance addressing pregnancy discrimination and related issues, along with a related Question & Answer document and a Fact Sheet for Small Businesses. The Enforcement Guidance clarifies many aspects of the Pregnancy Discrimination Act and provides additional guidance on how to manage pregnant employees and avoid pregnancy discrimination claims.

Discrimination

In the guidance, the EEOC reinforces the Pregnancy Discrimination Act's (PDA's) prohibition of discrimination based on pregnancy, childbirth and related medical conditions such as lactation, past pregnancy and a woman's potential to become pregnant. The EEOC also suggests that the FMLA and certain provisions of the Affordable Care Act regarding lactation and contraception coverage may provide pregnant workers with additional protections.

Leave and Benefits

The guidance also advises employers that, under the PDA, they are required to provide the same benefits and leave to women affected by pregnancy as they provide to other individuals who are similar in their ability or inability to work.

Health Insurance

Further, the PDA dictates that if an employer provides health insurance to employees covering other medical conditions, the employer must also provide health insurance covering pregnancy, childbirth and related medical conditions on the same terms and conditions.

Accommodating Individuals Affected by Pregnancy-Related Disabilities

The EEOC also states that while pregnancy itself is not considered a disability, pregnancy ­related medical conditions and impairments may qualify as disabilities under the ADA. The 2008 amendments to the ADA expanded the definition of disability to include temporary conditions. Therefore, pregnancy related impairments such as back pain, gestational diabetes, preeclampsia and complications requiring bed rest may be considered disabilities under the ADA if they substantially limit one or more major life activities.

Accordingly, employers may be required to provide pregnant workers with disabilities the same reasonable accommodations as other workers with disabilities unless the accommodation would result in an undue hardship or significant difficulty or expense for the employer. Reasonable accommodations for pregnant employees may include, but are not limited to the following:

  • Redistributing marginal or non­essential job duties that a pregnant worker cannot perform;

  • Modifying workplace policies regarding rest breaks or food and drinks on the job;

  • Modifying work schedules to accommodate morning sickness;

  • Permitting telecommuting;

  • Providing additional leave under a sick leave policy;

  • Providing equipment, such as a stool, to assist with performance of job duties; and

  • Temporary assignment to a light=­duty position.

Best Practices for Avoiding Pregnancy Discrimination

The guidance also discusses the following best practices employers can implement in order to minimize the risk of pregnancy discrimination:

  • Being proactive and developing strong policies against pregnancy discrimination and harassment;

  • Training managers and employees on such policies;

  • Identifying any workplace policies that have an adverse effect on pregnant women; and

  • Taking pregnancy discrimination complaints seriously by investigating them and following up with disciplinary measures if needed.

Supreme Court Weighs in on Pregnancy Discrimination

Note, however, that a recent US Supreme Court decision has called the EEOC Enforcement Guidance into question. On March 25, 2015, the Court issued its decision in Young v. UPS. The Court rejected the employee's (and the EEOC's) position that the PDA requires an employer that accommodates non-pregnant employees with work limitations to accommodate pregnant employees who are similar in their ability or inability to work. The Court explained that just because an employer provides one or two workers with an accommodation does not mean it must provide similar accommodations to all pregnant workers, regardless of the nature of their jobs. The Court also specifically declined to rely upon the EEOC's Enforcement Guidance, finding it is too broad and at odds with the intent underlying the PDA. While the Court declined to impose a blanket accommodation requirement for pregnant employees, workplace policies that provide accommodations to some workers but exclude pregnant employees may nonetheless violate the PDA. An employer may defend its policies by showing it had a legitimate, nondiscriminatory reason for refusing to accommodate a pregnant employee, but the employee then has the opportunity to show that the reason was a pretext for discrimination.

In response to Young, the EEOC issued a revised and updated version of the Enforcement Guidance on June 25, 2015. The new version removed the provisions that purported to mandate accommodations for pregnant women where non-pregnant, similarly abled or disabled individuals had received accommodations, regardless of whether the accommodations resulted from the ADA, an internal policy that prioritizes workplace injuries over other physical limitations or an employer's discretion. The EEOC also revised the provisions governing light duty to align with the Young decision, such that it no longer provides that pregnant employees are entitled to light-duty work if other non-pregnant employees received light-­duty work. An employee must show that an employer's denial of light­-duty work, where the employer has put forth a legitimate, nondiscriminatory reason for the denial, was a pretext for pregnancy discrimination.

With respect to leave, the Enforcement Guidance reiterates that medical and sick leave policies must be applied uniformly to pregnant and non-pregnant employees. Further, the EEOC takes the position that sick or medical leave policies that are capped at a predetermined number of days may disparately impact pregnant women. Even if a pregnant employee has a pregnancy ­related impairment that does not rise to the level of an FMLA ­qualifying serious health condition, she may nonetheless be eligible for medical or sick leave under the employer's own policies or as a reasonable accommodation under the ADA.

While pregnancy itself is not considered a disability under the ADA, the Enforcement Guidance explicitly recognizes that pregnancy­ related impairments, even some that arise from a healthy pregnancy, may nonetheless qualify as disabilities for purposes of the ADA, which gives rise to the need for reasonable accommodations. According to the Enforcement Guidance, "[a]n impairment's cause is not relevant in determining whether the impairment is a disability. Moreover, under the amended ADA, it is likely that a number of pregnancy ­related impairments that impose work-­related restrictions will be substantially limiting, even though they are only temporary." See Employee Management > Disabilities (ADA) > ADA Interplay.

Employers should review and implement the EEOC's suggested best practices, which were not changed in the updated Enforcement Guidance, to avoid pregnancy ­related PDA and ADA violations. The Enforcement Guidance identifies several best practices in each of the following categories:

  • Anti-discrimination policies and procedures;

  • Hiring, promotion and other employment decisions;

  • Leave and other benefits;

  • Terms and conditions of employment; and

  • Reasonable accommodation.

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