Transcript Pregnancy & Related Issues in the Workplace Guest Presenter - Jeff Nowak, J.D., Co-Chair Franczek Radelet Labor and Employment Practice Group and Author, FMLA.

Pregnancy & Related Issues
in the Workplace
Guest Presenter - Jeff Nowak, J.D., Co-Chair
Franczek Radelet Labor and Employment
Practice Group and Author, FMLA Insights Blog
Tracie DeFreitas, M.S.
JAN Lead Consultant, ADA Specialist
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
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Agenda
 Overview:
 Pregnancy Discrimination Act (PDA)
 Americans with Disabilities Act Amendments Act
(ADAAA) & Pregnancy
 State-Level Pregnancy Non-Discrimination,
Accommodation & Leave Laws
 The Interactive Process and Accommodating
Workers who are Pregnant
 Related Issues
 Infertility
 Nursing Moms
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PDA
Pregnancy Discrimination Act

Discrimination based on pregnancy, childbirth, or
related medical conditions is a form of sex
discrimination

By enacting the PDA, Congress sought to make clear
that pregnant women who are able to work must be
permitted to work under the same conditions as other
employees

The PDA requires that pregnant employees be
treated the same as non-pregnant employees who
are similar in their ability or inability to work
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EEOC & Pregnancy
Equal Employment Opportunity Commission
Guidance on Pregnancy Discrimination and
Related Issues

July 2014: Comprehensive guidance regarding
treatment of pregnant employees

EEOC will broadly interpret when pregnancy-related
conditions are considered disabilities under ADAAA

What conditions?
 May include symptoms such as back pain; disorders such as
preeclampsia (pregnancy-induced high blood pressure) and
gestational diabetes; complications requiring bed rest; and
the after-effects of a delivery.
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EEOC’s Interpretation
1. No discrimination against pregnant employees
2. When not able to work for medical reasons, they must
have same rights, leave privileges, and other benefits
as others who are disabled from working
3. Must offer reasonable accommodations to pregnant
employees
 Provide temporary light duty and other
accommodations to pregnant employees with work
restrictions if employer provides same accommodation
to non-pregnant employees who have similar work
restrictions
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Young V. UPS
UPS has a policy of giving light duty assignments to
various categories of employees who are physically
unable to do their usual job.
Under the policy, these categories of employees are
entitled to light duty assignments:
 Employees who have been injured on the job
 Employees who have a qualifying disability under the
ADA
 Employees who have temporarily lost their DOT
certifications
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Young V. UPS

Young provides doctor’s note stating she should not
lift more than 20 lbs. for the first 20 weeks of her
pregnancy and not more than 10 lbs. thereafter

HR informs Young that she is not among the
categories of employees that are entitled to light duty

Ms. Young takes unpaid leave for the duration of her
pregnancy
 Lost income
 Lost medical coverage months before birth of her child

Young sues UPS for pregnancy discrimination
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The Parties’ Arguments
Young: the statutory
language should be
interpreted literally — that
an employer must provide
the same
accommodations to
pregnant employees as it
does to non-pregnant
employees who are
similar in their ability or
inability to work
UPS: if employer provided
accommodations to
pregnant women in the
same way it provided
accommodations to
others in a facially neutral
category (e.g., no
accommodations for offthe-job injuries), the
employer could not be
liable for pregnancy
discrimination
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SCOTUS
The Supreme Court rejected both interpretations
 Young’s views granted pregnant workers a
“most-favored-nation” status, under which an
employer would have to provide similar
accommodations to all pregnant workers
regardless of the nature of their workers, jobs
or any other criteria
 Also concerned that UPS’ position would
permit employers to treat pregnancy less
favorably than diseases or disabilities
resulting in a similar inability to work
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The Burden Shift
Plaintiff’s Case:

She belongs to the protected class (i.e., she is or
was pregnant)

She sought an accommodation

The employer did not accommodate her

The employer accommodated
others similar in their ability or
inability to work
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The Burden Shift
Defendant’s Case:

Must provide a legitimate, non-discriminatory reason
for its refusal – which normally cannot simply be that
it is more expensive or less convenient to add
pregnant women to the category of employees whom
the employer accommodates

Plaintiff must show pretext by showing that:

The employer’s policies impose a significant burden on
pregnant workers, and

The justification for not accommodating pregnant
employees is not sufficiently strong, giving rise to an
inference of intentional discrimination.
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What do we know?
 Inconvenience or expense is not a legitimate
reason for an employer to fail to accommodate
pregnancy or related conditions.
 Courts could consider:
1) whether the employer made accommodations in other
types of cases but not pregnancy, and
2) whether the employer had multiple “accommodation”
policies but having nothing for pregnancy
3) more favorable treatment to at least some employees
whose situation cannot reasonably be distinguished to
hers
What does this mean?
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ADA Amendments Act
ADAAA

Broad mandate for
expansive coverage
encourages employers
to err on the side of
assuming a medical
condition is a disability

Employers are
encouraged to provide
accommodations to
workers with all but
indisputably minor
conditions, even if
they are not
“substantially limited in
a major life activity”
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State-level Protections

States are leading the conversation when it comes to
mandating accommodations for pregnant workers
- Alaska
- Illinois
- Maryland
- California
- Connecticut
- Hawaii



- Minnesota
- Texas
- Louisiana
- New Jersey
- West Virginia
- Massachusetts
Illinois: must provide accommodations to pregnant
employees absent an undue hardship; cannot
provide accommodation that is not requested
Massachusetts: employers must provide up to 8
weeks of job-protected leave to female employees for
the birth or adoption of a child
Employment Protections for Workers Who Are
Pregnant or Nursing at www.dol.gov/wb/maps
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Baby’s on board.
Is your business?
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Interactive Process & Pregnancy
Why engage in the
interactive process?
A wiser question
may be… Why not?
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Interactive Process & Pregnancy
Recognize &
Acknowledge
the Request
Gather Information
(Legal, Medical, Job
Functions)
Make a Decision,
Communicate &
Document
Explore
Accommodations
Implement
Accommodations
Monitor &
Document
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Getting Over the Bump: 5 Tips
 Be informed
 Review and update
accommodation
policies
 Engage in an
interactive process
 Use available
resources
 Train managers,
supervisors, and
human resource
professionals
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Pregnancy & Accommodations
Ruth is a nursing
What should her
assistant for a
employer do next?
residential care
 Recognize this as
facility. She is five
a request
months pregnant and
has told her employer  Gather information
that she is now
 Make an
restricted from lifting
accommodation
more than 20 lbs. She
decision
sometimes must lift 50
lbs. or more.
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Pregnancy & Accommodations
 Allow co-worker
assistance when
lifting
 Leave of absence
 Provide lifting and
transfer aids
 Limit lifting by
providing modified
job tasks
 Assign to “light
duty” position
EZ Way, Inc.
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Pregnancy & Accommodations
Sonia is a customer
service representative for
Bun In The Oven
Bakery’s call center. She
is pregnant and her
medical provider says she
must intake more fluids
and calories throughout
the day. She works in a
cubicle and handles
inbound calls.
Food and drinks are not
allowed at workstations.
Sonia has thirty minutes
for lunch and two fifteenminute breaks.
How might Sonia
be accommodated?
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Pregnancy & Accommodations
 Modify policy to
allow food/drinks at
workstation
 Modify break policy
to allow frequent
use of restroom
 Allow additional
unpaid break time
or flexible schedule
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Pregnancy & Accommodations
Elena is a correctional officer at a prison. She is
four months pregnant and is considered highrisk due to high blood pressure and previous
miscarriages. Elena’s medical provider has
restricted her from working with inmates
because she is concerned that she will be hit or
kicked in the abdomen.
Can Elena perform her job duties?
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Pregnancy & Accommodations
 Is working with
inmates an
essential job
function?
 Obtain clarification
regarding
restriction of not
“working with
inmates”
 Is “light duty”
available?
 If so, does it
require her to work
with inmates?
 Leave of absence
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Pregnancy & Accommodations
Let’s rewind…
Elena is a correctional officer at a prison. Her
employer believes she cannot perform her
job duties while pregnant, but she has no
medical restrictions currently affecting her
ability to perform job duties.
Can Elena be removed from her position?
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Pregnancy & Job Performance
 Bona Fide Occupational Qualification (BFOQ)
Defense, PDA

Extremely narrow exception to the general prohibition of
discrimination on the basis of sex

Must show that pregnancy actually interferes with a female
employee's ability to perform the job

Must be based on objective, verifiable skills required by the
job rather than vague, subjective standards

Without showing a BFOQ, an employer may not require that
a pregnant worker take leave until her child is born or for a
predetermined time thereafter, provided she is able to
perform her job
Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC, 2012
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Pregnancy & Accommodations
Sandra works in quality
control for Bottles &
Binkies. Her job
requires standing while
she visually inspects
products on a
conveyor belt. Sandra
is pregnant and is
experiencing
significant back, pelvic,
and sciatic nerve pain.
Could
accommodations
help Sandra
continue working
during her
pregnancy?
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Pregnancy & Accommodations
 Review and alter
how essential and
marginal job
functions are
performed
 Allow a modified or
reduced schedule
 Provide a stool to
alternate between
standing and sitting
 Provide anti-fatigue
mat
The Human Solution
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Pregnancy & Accommodations
Anna is approximately
34 weeks pregnant
and has
preeclampsia. Her
medical provider has
recommended “bed
rest” for the remainder
of her pregnancy. She
has one week of
accrued sick leave.
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Pregnancy & Accommodations
How is “bed rest”
defined in this case?
How much time is
reasonable?
Can Anna work from
home?
Does FMLA apply?
Should leave be
considered as an
accommodation under
ADA?
What about a state
pregnancy leave law?
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Related Issues
Does an employee
seeking leave for
infertility treatments
have a right to
protected leave under
federal or state laws?

FMLA, PDA,
ADAAA…

EEOC – failure to
provide protected
leave to an employee
for IVF treatments will
lead to an inference of
gender discrimination
(EEOC, 2014)
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Related Issues
 Affordable Care Act (ACA) amendment to the
Fair Labor Standards Act (FLSA): Nursing
Mothers Break Time Provision
 Employers must provide:

Reasonable (unpaid) break time to express breast milk for
one year after the child's birth each time such employee has
need to express the milk

A place, other than a restroom, that is shielded from view
and free from intrusion from coworkers and the public, which
may be used by an employee to express breast milk”
 U.S. Department of Labor, Wage & Hour
Division, Break Time for Nursing Mothers at
www.dol.gov/whd/nursingmothers
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Pregnancy-Related Resources

EEOC Guidance on Pregnancy Discrimination and
Related Issues at
http://www.eeoc.gov/laws/guidance/pregnancy_guida
nce.cfm

Questions and Answers about the EEOC’s
Enforcement Guidance on Pregnancy Discrimination
and Related Issues at
http://www.eeoc.gov/laws/guidance/pregnancy_qa.cf
m

Employment Protections for Workers Who Are
Pregnant or Nursing, U.S. Dept. of Labor, at
http://www.dol.gov/wb/maps
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Pregnancy-Related Resources

FMLA Insights Blog at http://www.fmlainsights.com

JAN Enews: Getting Over the Bump: Pregnancy at
Work at http://askjan.org/ENews/2015/Enews-V13I2.htm#3

JAN Blog: Requesting Accommodations Due to
Pregnancy-related Limitations at
http://askjan.org/blog/?p=740

JAN’s A-Z by Disability: Pregnancy at
http://askjan.org/media/preg.htm
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Questions?
JAN
(800) 526-7234 (V)
(877) 781-9403 (TTY)
AskJAN.org
[email protected]
(304) 216-8189 via Text
janconsultants via
Skype
Special thanks to
Jeff Nowak
[email protected]
(312) 786-6164
@jeffreysnowak
www.fmlainsights.com
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