Thursday, June 16, 2016

EEOC on pregnancy-related limitations and restrictions at work

It’s been nearly a year since the EEOC updated its administrative guidance on pregnancy discrimination to account for the Supreme Court’s holding in Young v. UPS regarding an employer’s obligations to accommodate its pregnant workers.

In case the EEOC’s guidance is too dense for you to digest, the agency has chosen to commemorate its participation in the White House United State of Women Summit with the publication of two new pregnancy-related resources.
The guide on legal rights for pregnant workers clarifies the EEOC’s expectations as to an employer’s treatment of pregnant workers.
  • You cannot discriminate on the basis on past or present pregnancy, an ability or intent to become pregnant, a medical condition related to pregnancy, or an abortion or its consideration.
  • You cannot harass.
  • You likely have to accommodate.
I’d like to focus on the latter, which the agency addresses answering the following four questions.

What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely. Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.  
You may be able to get an accommodation under the PDA if your employer gives accommodations to employees who have limitations that are similar to yours, but were not caused by pregnancy.  
You may be able to get an accommodation under the ADA if you have a pregnancy-related medical condition.
What if there’s no way that I can do my regular job, even with an accommodation? 
If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the PDA. Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.
What if I can’t work at all because of my pregnancy? 
If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation. You may also qualify for leave under the Family and Medical Leave Act.
What should I do if I need an accommodation, light duty, or leave because of my pregnancy?
Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy. You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA. An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one. The employer also cannot charge you for the costs of an accommodation. Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse. 
Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it. Your health care provider might also be asked whether particular accommodations would meet your needs.
In other words, do not assume that you can avoid offering an accommodation to a pregnant employee to enable her to perform the essential functions of her job. In fact, the converse is likely true. In most cases, you do have to offer such an accommodation. The only instance when you would not have to do so is if: (1) the employee does not otherwise have an ADA-protected medical condition; and (2) you have never offered accommodations to similarly limited non-pregnant employees.

If you are concerned over these employee protections, or otherwise want to make sure that your pregnant employees are not trying to take advantage of you by seeking unnecessary accommodations, the EEOC's other publication (Helping Patients Deal with Pregnancy-Related Conditions and Restrictions at Work), which is geared towards medical providers, offers a nice roadmap of the types of confirmatory information for you should be asking from an accommodation-seeking pregnant employee.

[Photo by bobcat rock, license via creative commons 2.0]