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1. What laws govern the employment of pregnant workers?
2. Is pregnancy covered by the ADA?
3. Do we have to hire a pregnant applicant?
4. Can we require employees to tell us as soon as they know
they are pregnant?
5. Can we discipline a pregnant employee for performance and
attendance problems?
6. Do we have to provide light duty or part-time work for
pregnant employees?
7. Can we require a pregnant employee to take leave if we
think her job will endanger her pregnancy?
8. How much leave do we have to offer pregnant employees?
9. Can we offer pregnant employees more leave than we offer
employees with other temporary disabilities?
10. Do I have to reinstate employees who take
pregnancy-related leave?
Know the Law and Be Consistent
As long as you have female employees,
it is a sure bet you will have to deal with issues relating to
pregnancy, and even discrimination. Below, we tackle common
questions about pregnancy discrimination and leave laws.
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Most employers
know that they cannot discriminate against a pregnant woman based on
the fact of her condition. But, when is it appropriate to consider
factors that affect her ability to perform the job and that are
linked to her pregnancy, like absences for prenatal care or
restrictions on lifting? Pregnant employees are protected by a
number of different laws, and sorting through them can be
confusing. To help clarify your obligations, below are the answers
to ten of the most commonly asked questions related to pregnancy
discrimination and leave law compliance.
Creating HR Policies or Employee Handbook?
1.
What
laws govern the employment of pregnant workers?
Federal and
state laws governing pregnancy generally fall into two categories –
prohibitions against adverse employment actions and rules covering
pregnancy-related leave.
The primary
law prohibiting adverse employment actions against pregnant
employees is the federal Pregnancy Discrimination Act (PDA), which
amended Title VII of the Civil Rights Act to recognize
discrimination based on pregnancy as a form of sex discrimination.
The PDA applies to employers with 15 or more employees and requires
covered employers to treat women affected by pregnancy, childbirth,
or related medical conditions in the same manner as other applicants
or employees with temporary disabilities.
Pregnancy-related leave
is covered by the PDA, the Family and Medical Leave Act (FMLA) and,
in limited circumstances, the Americans with Disabilities Act
(ADA). These laws govern how pregnant employees should be treated
when they are not able to work as a result of their pregnancy. The
ADA covers employers with 15 or more employees, while the FMLA
applies to employers with 50 or more employees and to all public
agencies and schools, without regard to the number of employees. A
pregnant employee is eligible for FMLA leave if she (1) has worked
for the employer for at least 12 months (not necessarily
consecutively), (2) has worked for the employer for at least 1,250
hours in the previous 12 months, and (3) works at or is assigned to
a worksite that has 50 or more employees or which is within 75 miles
of employer worksites that taken together have a total of 50 or more
employees.
In addition,
several states also have leave laws similar to the FMLA or that
apply only to pregnancy that should be consulted.
Generally, a
normal pregnancy resulting in temporary disability is not covered
under the Americans with Disabilities Act (ADA). However, in
certain limited circumstances, a pregnant employee who is
experiencing substantial complications that limit a major life
activity may be considered disabled under the ADA and entitled to
accommodation.
3.
Do we have to
hire a pregnant applicant?
What if we are concerned about her ability to do the job because of
the pregnancy?
The PDA does
not require that you hire pregnant women, but rather that you treat
them the same way as other applicants with temporary disabilities.
This means you cannot refuse to hire a woman because of her
pregnancy if she is qualified and is able to perform the job.
To avoid
potential liability, you should not discuss an applicant’s pregnancy
during an interview, even if her condition is obvious. Instead, you
should focus on the requirements of the job and the candi-date’s
ability to meet them. If, for example, it is vital that the
applicant start work immediately and take no leave for the first six
months of employment, ask the applicant if she can meet those
requirements. If she says she cannot, you are under no obligation
to hire her. Just make sure you are imposing the same requirements
on all applicants.
4.
Can we require
employees to tell us as soon as they know they are pregnant?
When it comes
to reporting requirements, employers may not burden pregnant workers
with more stringent reporting rules than it requires of others who
will need disability leave. Thus, if you only require 30 days
notice of the need for foreseeable leave (as the FMLA allows), you
cannot require pregnant employees to give more notice.
5.
Can we discipline a pregnant employee for performance and attendance
problems?
Generally,
yes. Although a pregnant employee is protected from discrimination,
you do not have to tolerate poor performance or attendance simply
because she is pregnant. You may hold her to the same work
standards as other employees, as long as you apply them
consistently.
If her
performance or attendance problems are related to her pregnancy (for
example, she is late to work because of morning sickness or cannot
lift boxes as required to perform her job), the PDA requires only
that you treat her the same as you would any other employee with a
temporary medical condition. Thus, if you allow employees with
temporary medical conditions to be late because of their conditions
or accommodate their lifting restrictions, you should apply the same
standards to a pregnant employee.
Note, however,
if she is covered under the FMLA, you may have to take her pregnancy
into consideration if her attendance problems are caused by
pregnancy-related medical conditions. Absences that qualify as FMLA
leave should not be counted when determining whether an employee’s
attendance problems warrant discipline or discharge.
6.
Do we have to
provide light duty or part-time work for pregnant employees?
The answer depends on your policies
and the employee’s FMLA eligibility.
Your policies.
The PDA does not specifically require an employer to transfer a
pregnant employee to a light duty position or part-time work to
accommodate her pregnancy. However, if you have a policy or
practice that normally allows an employee with a temporary medical
condition to transfer to a position that better accommodates his
condition or to work part-time, then you should do the same for a
pregnant employee.
The FMLA.
The FMLA allows employees with serious health conditions, including
conditions related to pregnancy, to take leave on a reduced work
schedule if it is “medically necessary.” A reduced work schedule
refers to a schedule that reduces an employee’s usual number of
hours for a period of time, such as switching from full-time to
part-time work for several weeks. According to the FMLA
regulations, a reduced work schedule is “medically necessary” if an
employee has a serious health condition that requires a treatment
regimen which is best accommodated by this type of leave. Thus, if
a health care provider certifies a pregnant employee’s need for
part-time work, you may have to provide that schedule. The FMLA
does not specifically require light duty, however.
7.
Can we
require a pregnant employee to take leave if we think her job will
endanger her pregnancy?
As a general
rule, you cannot require a pregnant employee to take a leave if she
can perform her job duties. According to an Equal Employment
Opportunity Commission (EEOC) policy guide, an employee who can
perform the essential functions of a job must be considered eligible
for employment, regardless of the presence of workplace hazards to
fetuses. According to the EEOC, it does not matter that the
employer may be able to prove that the worker will be exposed to
materials that are harmful to fetuses or that an employer will incur
greater costs in hiring women. Accordingly, if the employee is able
to perform the job functions, your only course of action may be to
notify her of potential hazards and encourage her to discuss them
with her doctor to determine if she should continue working.
If, however,
the employee is unable to perform the job functions, such as if she
is restricted in standing or lifting, you can offer her a leave, or
a transfer if a position is available, as allowed by your normal
policies or the FMLA (if that law applies). (See questions 6,
above, and 8, below.)
8.
How much
leave do we have to offer pregnant employees?
The two major
federal laws regulating pregnancy and childbirth leaves are the PDA
and the FMLA.
The PDA.
Because the PDA is an antidiscrimination law rather than a leave
law, it does not require covered employers to give pregnancy leaves
of any specific duration. Instead, it requires employers to provide
pregnant employees the same leave and benefits granted to
nonpregnant employees with temporary disabilities. According to
guidelines issued by the EEOC, policies relating to the commencement
and duration of leave, availability of leave extensions, accrual
during leave of seniority and other benefits and privileges,
insurance coverage, and reinstatement after leave all must apply
equally to both pregnancy and other temporary medical disabilities.
The FMLA.
In contrast, the FMLA is a leave law, and it requires covered
employers to give eligible pregnant employees unpaid leaves of up to
12 workweeks during any 12-month period. The FMLA provides leave
for pregnant employees in two circumstances. First, an employee can
take FMLA leave if she is unable to work because she has a serious
health condition related to her pregnancy. The FMLA regulations
state that any period of incapacity due to pregnancy, as well as
prenatal care visits, is a serious health condition. Alternatively,
once the employee is able to return to work after giving birth, she
can take any remaining FMLA leave to care for her newborn child (up
to a total of 12 weeks of leave in a 12-month period).
In addition,
state law should be consulted since a few states (such as California
and Tennessee) have enacted laws that require pregnancy leaves.
These state laws typically require longer pregnancy leaves than the
leave mandated by the federal laws.
9.
Can we offer
pregnant employees more leave than we offer employees with other
temporary disabilities?
Although
employers may not treat pregnant employees worse than other
temporarily disabled employees, some preferential treatment of
pregnant employees may be lawful. In California Federal Savings
and Loan v. Guerra, 479 U.S. 272 (1987), the Supreme Court held
that a state can require employers to provide a benefit to pregnant
employees, such as additional leave, which is not granted to other
temporarily disabled employees. This decision appears to allow
employers to give pregnant employees more leave than is given to
other employees.
One caveat
should be noted. This preferential treatment may apply only during
the period when the employee is actually disabled as a result of the
pregnancy. Employers generally must give the same leave benefits to
both male and female employees who take parental leave to care for a
newborn. Therefore, if you offer female employees leave for
childcare when no disability exists, you also should offer male
employees equivalent leave.
10.
Do I have to reinstate employees who take pregnancy-related leave?
The FMLA specifically requires
reinstatement, while the PDA requires consistent treatment of
pregnant employees.
The FMLA.
As a general rule, the FMLA requires that an employee be restored to
her original job or to an equivalent job with equivalent pay,
benefits, and other terms and conditions of employment. The FMLA
does not require reinstatement once the FMLA’s 12-week entitlement
has been exhausted.
The PDA.
The PDA requires employers to permit an employee on pregnancy leave
to return to her job on the same basis as other employees returning
to work from sick or disability leave. For example, the
reinstatement of an employee returning from pregnancy leave cannot
be conditioned on the availability of an appropriate vacancy if the
same restriction does not apply to employees returning from other
disability leaves. Similarly, you may not require an employee
returning from pregnancy disability leave to certify her ability to
return to work unless all employees returning from medical leaves to
the same type of job are required to do so.
Many employers
are uncomfortable when dealing with pregnant employees because they
do not understand their obligations and are afraid of making
mistakes that could lead to costly lawsuits. However, you should
not let compliance fears keep you from making legitimate job-related
decisions. A sound grounding in pregnancy discrimination and leave
issues should help you find practical solutions to the questions
that arise. Your first step should be to treat pregnant applicants
and employees the same as you treat other candidates and employees
with temporary medical conditions. In other words, be fair and
consistent. And, when in doubt, consult your legal counsel for help
in protecting against discrimination and FMLA claims. |
Personnel
Policy Service, Inc.
