The rules for managing pregnant employees are changing, and the EEOC wants to make sure you are playing by the new rules.
It used to be that you didn’t have to worry about being sued as long as you didn’t treat a pregnant employee any worse than any other employee. You can probably recite in your sleep the traditional standard for managing pregnant employees: “treat them the same as any other employees who are similar in their ability or inability to work.”
That is changing, however, and the EEOC is on the lookout for employers who are not changing the way they handle pregnancy issues in the workplace. Last month the EEOC approved a Strategic Enforcement Plan that tells employers the areas in which it will concentrate its investigatory and prosecutorial resources. Accommodating pregnant workers received a special mention in the plan as a “national priority.” It is no longer safe to assume that you can deny a pregnant employee light duty, extra breaks, and a stool to sit on just because you don’t provide them to other employees.
What has changed? The amendments to the Americans with Disabilities Act that became effective in 2009 may mean that serious pregnancy-related conditions come within the statute’s definition of “disability” and will require reasonable accommodation. Guidance by the EEOC about the ADA amendments and pregnancy states that conditions such as gestational diabetes and preeclampsia can be disabilities for which employers must provide reasonable accommodations. The courts have yet to issue any significant rulings about accommodation of pregnancy-related conditions under the ADA amendments, so heeding the guidance would be wise.
More Employees Require Accommodation
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Another change is that under the ADA amendments, more employees are now going to be deemed to have disabilities that require accommodation.
Employees who have:
- chronic back problems may need help lifting heavy objects as an accommodation
- joint problems may need a stool to sit on
- interstitial cystitis may need to have water bottles at their workstations and take frequent restroom breaks
Given that pregnant employees must be treated like other employees who are similar in their ability or inability to work, this expansion of the reasonable accommodations given to employees will mean a corresponding expansion in the accommodations that must be given to pregnant women who need them, even though the pregnant women do not themselves have a disability.
For employers in California, another change has taken place. Effective December 30, 2012, new FEHA regulations went into effect requiring employers to accommodate pregnant employees even if other employees are not similarly accommodated and even if the pregnant employees do not have conditions that are considered disabilities. At the national level, a bill to require accommodation of non-disabled pregnant employees died in committee during the last Congressional session, but is likely to be introduced again.
Steps to Compliance
So, what can you do to avoid becoming a test case for the EEOC’s new national enforcement priority? The obvious action step is to review the types of accommodations your company has made for workers with non-pregnancy-related disabilities, injuries, and illnesses and make similar accommodations for pregnant workers if it would help them to continue to work.
Additional steps include:
- Ensure that HR and supervisors know that the ADA amendments mean that employers are to focus not on whether an employee’s condition meets the statutory definition of disability but rather on what the employee needs in the way of a reasonable accommodation to be able to continue to work, and also know that the same standard applies now to pregnancy-related conditions.
- Educate supervisors about the business benefits of retaining pregnant workers in order to reduce bias [http://www.workforce21c.com/frdworkplace.html ] that can cause supervisors to try to get rid of pregnant workers.
- Encourage supervisors to be creative in crafting reasonable accommodations that will help a pregnant employee remain productive with as little detriment to the employer as possible, perhaps by pointing them to resources such as the Job Accommodation Network [http://askjan.org/].
- Give HR a proactive role in overseeing the management of pregnant employees to avoid claims of discrimination.
- Review your company’s internal grievance procedure to make sure it is equipped to handle pregnancy accommodation complaints, and remind employees to use the procedure if they believe they are being discriminated against.