The EEOC’s guidance article has three major directives. First, an employer cannot discriminate on the basis of a past or present pregnancy, an ability or intent to become pregnant, a medical condition related to pregnancy, or an abortion. Similarly, an employer cannot harass an employee based on these same considerations. Finally, and potentially most importantly, the employer appears to now be under a heightened expectation to make accommodations for a pregnant employee.
In providing guidance on the issue of a heightened right to accommodations, the EEOC delivered its message in the form of a hypothetical question and answer format as reproduced below:
Q: 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.
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You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific. However, you should know that the Americans with Disabilities Act (“ADA”) doesn’t require your employer to make changes that involve significant difficulty or expense. Also, if more than one accommodation would work, the employer can choose which one to give you.
Q: 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.
Q: 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.
Q: What if there’s no way that I can do my regular job, even with an accommodation?
First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true and that your provider has considered the option of an accommodation that would allow you to do your job safely.
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 Pregnancy Discrimination Act (“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.
The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a strategy on how to ensure you are compliant with both the regulations of the Americans with Disabilities Act and the Pregnancy Discrimination Act, call now to arrange for a free consultation at 215-947-6240 or visit us online.
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