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► Special Delivery: Considerations For Pregnant Employees

The Pregnancy Discrimination Act of 1978 (PDA) makes it illegal for employers to dis-criminate against pregnant employees and requires reasonable accommodations for an employee’s known limitations related to pregnancy or childbirth. Let’s look at how the PDA and the Pregnant Workers Fairness Act (PWFA) affect employers who have pregnant employees. We’ll be using West Virginia’s version as an example, though other states’ laws are similar.

Unlawful Discrimination

Under both the PDA and PWFA, it’s unlawful for employers to discriminate against employees based on pregnancy or childbirth by firing them or otherwise “deny[ing] employment opportunities.” These “employment opportunities” include essentially the full gamut of terms and conditions of employment, including pay, assignments, promotions, hiring, firing, layoffs, and fringe benefits.

As the PDA and the PWFA take the form of amendments to existing civil rights statutes (Title VII of the Civil Rights Act of 1964 and its state equivalents), discrimination based on pregnancy is considered a form of unlawful gender discrimination.

The term “pregnancy” is likewise quite broad. Under the PWFA, “pregnancy” encompasses not just current pregnancies, but also pregnancies which are past, potential, or even intended.

In other words, an actual “pregnancy” technically need not exist to invoke protections of the Acts. Moreover, the protections extend to any medical condition that’s related to pregnancy or childbirth. Some examples include miscarriage, pregnancy termination, gestational diabetes, after-effects of delivery, postpartum depression, fertility issues, and lactation.

Finally, hiring personnel should be aware that employers are forbidden to ask a prospective employee whether they are, have been, will be, or plan to be pregnant or affected by a pregnancy.

Remember, at least under West Virginia’s version of the PWFA, the prohibition on pre-employment inquiries regarding whether a person may be affected by pregnancy doesn’t apply solely to women. It also applies with equal force to men (who may well also be “affected” by their partner’s pregnancy or related complications).

In an interview, regardless of gender, it’s best to simply stick to questions regarding the applicant’s ability to perform job-related tasks.

Reasonable Accommodations for Pregnant Employees

The PDA and the PWFA also require employers to provide a reasonable accommodation to an employee’s known limitations related to pregnancy, childbirth, or other related medical conditions. Broadly, this means that an employee who requests accommodation for pregnancy-related issues should be treated as any other employee who requests an accommodation.

To initiate a request, the employee requesting accommodation must present the employer with written documentation from the employee’s healthcare provider stating: (1) the known limitations on the employee related to the pregnancy; and (2) suggestions for accommodations which would address those limitations.

The employee and employer must then engage in an interactive process, similar to that undertaken during a disability accommodation request, to determine whether an accommodation can be made and, if so, what type of accommodation is appropriate.

Examples of reasonable accommodations could include (but are by no means limited to):

  • Assigning assistance to the pregnant employee for manual labor or heavy lifting;
     
  • A temporary reassignment to less strenuous or hazardous job duties;
     
  • Modifying a no-food-or-drink policy to allow the pregnant employee appropriate water intake;
     
  • Providing time off for prenatal doctor appointments;
     
  • Providing a stool for a pregnant employee experiencing swelling of the legs because of significant standing during a shift; or
     
  • Providing breaks and a private, sanitary space for a new mother to express breast milk.
     

Under the PWFA, you can’t require the employee to take leave—paid sick leave, Family and Medical Leave Act (FMLA) leave, etc.—if another accommodation is available. Unlike the traditional disability reasonable accommodation process, which allows you to choose an accommodation to offer, the PWFA explicitly forbids you from forcing an employee to accept an accommodation that she chooses not to accept. Thus, you should be prepared to identify more than one possible accommodation for a pregnant employee.

Like the traditional disability reasonable accommodation process, you can’t refuse to make an accommodation unless you can show it would cause an “undue hardship.” In most cases, analysis of whether an accommodation would impose an undue hardship is largely a financial one.

Factors to be considered include the nature and cost of the accommodation as well as the financial resources of the employer—both the employee’s specific work location and the employer as a whole.

Other practical considerations may come into play, however, such as the employer’s workforce structure, geographic layout, and other noneconomic impacts on the business that granting an accommodation may involve.

If, after evaluating potential accommodations, it’s determined that the pregnant employee simply can’t perform the essential functions of her position with or without an accommodation while pregnant, you must treat her the same as any other temporarily disabled employee. For example, she may be entitled to light duty, disability leave, or other leave such as FMLA leave.

Employer Liability

An applicant or employee who believes they have been discriminated against or not been provided a reasonable accommodation in violation of the PDA and/or the PWFA may file complaints with the Equal Employment Opportunity Commission (EEOC), state-level civil rights administrative tribunals, or in court.

An employer is strictly responsible for the acts of its officers and supervisory personnel—regardless of whether the specific acts were authorized (or even forbidden) by the employer’s policies. Thus, you should examine your policies to determine if they adequately cover pregnancy, update the policies if necessary, and provide appropriate education and training to your officers and supervisory personnel.

Bottom Line

Times are changing, and laws are coming into place reflecting those changes and ensuring a productive, nondiscriminatory workplace for employees who are pregnant or have recently had children.

Employers that are experienced with disability accommodations should find themselves on familiar ground in accommodating pregnancy and childbirth issues but must remain vigilant. An ounce of prevention in the form of thorough education and preparation to handle a pregnancy accommodation request will be far more advantageous than an employee filing suit for her pound of cure.

By Mark C. Dean. Mr. Dean is an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia. Mark focuses his practice in the area of labor and employment law, regularly representing employers – both public and private sector – in defense of employment-related lawsuits.

[6/2023]

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