The Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on Pregnancy Discrimination. (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm). The Guidance doesn’t offer new laws or protections for employees; rather, it gives a good discussion of the law and provides examples that are useful when addressing issues related to pregnant employees.
What You Need To Know. The most important thing you can learn from the Guidance is that an employer should not make assumptions about what a pregnant employee can and cannot do. The employee should initiate any discussion about job changes. The Guidance is clear that pregnancy should be treated like any other medical condition that could affect an employee’s ability to work. If a pregnant employee requests changes to her job or schedule to accommodate her pregnancy, the employer is allowed to request a medical note justifying the request. But, if the request is medically necessary, the employer must make reasonable accommodations to the woman’s job in order to accommodate her pregnancy and allow her to keep working. Only if the pregnant employee is having clear trouble performing her job, should the employer ask if she needs an accommodation.
Here are some examples of issues that might arise when managing a pregnant employee:
Light Duty Assignment. A pregnant employee in a manual labor job may request a light duty assignment. If her doctor indicates that she needs light duty, and the company offers light duty assignments to workers with injuries or disabilities, the pregnant employee should be treated the same as other workers with a medical condition and given light duty.
Hiring, Promotions, and Assignment. An employer should never consider the fact that a woman is pregnant, or that she may become pregnant in the future, when making decisions about hiring, promotions, or assignments. Therefore, an employer cannot refuse to hire a pregnant employee on the grounds that she will need a leave of absence. Likewise, an employer should not keep a pregnant employee off a lucrative sales team because of assumptions that the employee might not be unable to work long hours and might not want to travel.
Termination or Forced Leave of Absence. An employer should not terminate a pregnant employee or refuse to schedule her for work on the basis that she is pregnant. Employers should not make the decision that a job poses a danger to the unborn child. Employers should not decide that a pregnant employee won’t be able to handle the rigors of a difficult job and change an employee’s job assignment. The Guidance is clear that the pregnant employee, in consultation with her doctor, should make the determination as to whether she can perform her job safely.
Reasonable Accommodations. If an employee cannot perform her position because she is pregnant, the employer has a duty to ask if she could perform better with some reasonable accommodation. Just like any other medical condition that limits an employee’s ability to work, an employer has a duty to accommodate a pregnancy if reasonable steps would help an employee continue working. For example, a pregnant employee may require reduced hours, a flexible schedule, longer or more frequent breaks, special tools, alteration in how a job is performed, reassignment of some job duties to other employees, a light duty position, or a leave of absence.
Here are two examples from the Guidance where employers illegally made decisions about a pregnant employee.
Lena worked for a janitorial service that provided after hours cleaning in office spaces. When she advised the site foreman that she was pregnant, the foreman told her that she would no longer be able to work since she could harm herself with the bending and pushing required in the daily tasks. She explained that she felt fine and that her doctor had not mentioned that she should change any of her current activities, including work, and did not indicate any particular concern that she would have to stop working. The foreman placed Lena on unpaid leave for the duration of her pregnancy. Lena’s leave was exhausted before she gave birth and she was terminated. Lena’s discharge was illegal because it was due to stereotypes about pregnancy.
An employer reassigns a welder who is pregnant to a job in its factory’s tool room, a job that requires her to keep track of tools that are checked out for use and returned at the end of the day, and to complete paperwork for any equipment or tools that need to be repaired. The job pays considerably less than the welding job and is considered by most employees to be “make work.” The manager who made the reassignment did so because he believed the employee was experiencing pregnancy-related “complications” that “could very possibly result in a miscarriage” if the employee was allowed to continue working in her job as a welder. The employee was not experiencing pregnancy-related complications, and her doctor said she could have continued to work as a welder. The employer illegally made this transfer based upon incorrect assumptions about the pregnant employee’s capabilities. The employer is liable for discrimination because there is no evidence that the employee was unable to do the essential functions of her welder position or that she would have posed a direct threat to her own or others’ safety in that job.
Employers with pregnant employees should engage in an interactive dialogue with the employee to make sure the employer takes the necessary steps to help the employee succeed in her job. Decisions about the employee’s capabilities should be made between her and her doctor. Once the employee indicates what she can and cannot do, the employer should decide what reasonable accommodations it can make to help her.
If you have questions about managing employees during a pregnancy, feel free to contact EmCo Consulting, LLC to discuss this further.