STATES ARE EXPANDING PROTECTIONS FOR PREGNANT WORKERS

FEDERAL PROTECTION

Thirty-six years ago, Congress passed the Pregnancy Discrimination Act (PDA) which made it unlawful to discriminate based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, etc.  However, the PDA does not require employers to make accommodations for pregnant employees so they can continue to perform their jobs when faced with pregnancy-related medical conditions.

Employers are required by the Americans with Disabilities Act (ADA) to make reasonable accommodations under certain circumstances for employees with a “disability.”  In 2008, Congress amended the ADA to expand the definition of “disability,” but did not expand it to include pregnancy.

In 2012, the Pregnant Workers’ Fairness Act was introduced in the U.S. Senate to bridge the gap between the PDA and the ADA.  This Act would require employers to make reasonable accommodations for pregnancy, childbirth, and related medical conditions in much the same way as they are required for disabilities under the ADA.  The Act died in 2012, but was reintroduced in the Senate in May 2013 and is currently pending in Committee.  However, there is significant opposition to the Act and it is not expected to pass.

States Step in

In the absence of federal legislation, some states have enacted their own laws to further protect pregnant women’s rights in the workplace by treating pregnancy, childbirth, and related medical conditions as a temporary disability and requiring employers to provide reasonable accommodations as long as they do not cause the employer undue hardship.  These laws are generally patterned after the ADA’s reasonable accommodation requirements.  Such legislation has passed in California, Maryland, New York, and most recently in New Jersey and West Virginia.  There are also similar bills pending in Iowa and Illinois.  One was defeated last year in Maine.

While each state’s law is different, they essentially require an employer to provide reasonable accommodations to pregnant employees who suffer medical conditions related to pregnancy and childbirth which affect their ability to perform their jobs as long as they do not cause the employer an undue hardship.  Examples of reasonable accommodations include bathroom breaks, permission to carry a water bottle, periodic rest, assistance with manual labor, job restructuring, a modified work schedule, or a temporary transfer to a position that is less physically demanding.  While the PDA and ADA apply to employers with 15 or more employees, some states apply the new laws to employers with as few as three (3) employees.  This could pose difficulties for smaller employers which would necessarily be a factor in determining whether a requested accommodation is reasonable and/or would cause the employer an undue hardship.

WHAT DOES THIS MEAN FOR IDAHO EMPLOYERS?

To date, there are no similar bills pending before the Idaho legislature.  Idaho’s laws related to discrimination of pregnant employees are patterned after applicable federal laws.  However, a trend is forming among the states and if the federal Pregnant Workers’ Fairness Act fails to pass, more states may enact similar laws.  Idaho employers should continue to monitor the trend and be prepared to revise policies if such legislation is introduced in Idaho.  In the meantime, this is a good opportunity to review existing policies to ensure they are in compliance with federal laws applicable to pregnancy discrimination.

Pregnant women are protected from discrimination in the workplace under three federal laws: the Family Medical Leave Act (FMLA) of 1993; Title VII of the Civil Rights Act, passed in 1964; and the PDA. Together, these laws assert that a pregnant woman is entitled to continue working, as long as she is capable of doing her job, and may return to her job after the pregnancy when released by her doctor.  Refusal to honor these rights may result in serious consequences to the employer.

  • Under the PDA, if an employer provides any benefits to workers on leave, the employer must provide the same benefits to those on leave for pregnancy-related conditions.
  • Additionally, according to Title VII, pregnancy cannot be a factor in determining whether to hire or fire a woman, and a pregnant worker cannot be retaliated against because she is pregnant or filed a charge of discrimination.
  • Furthermore, under the FMLA, an employee is allowed 12 weeks of unpaid leave.

INSIGHTS FOR EMPLOYERS

    • Employers should avoid establishing pregnancy or pregnancy-related policies in their employee manuals, or any other company documents, unless it is for the sole purpose of restating the employee’s rights under the FMLA, Title VII, or the PDA.
    • Train all managers and supervisors about the legal obligations to, and treatment of, pregnant workers, as well as consequences in failing to abide by these legal obligations.  In doing so, provide examples of prohibited conduct, including, but not limited to, the following:
      • Treat pregnant employees the same as non-pregnant employees;
      • Do not deny requests for time off if allowed by FMLA;
      • Provide the same accommodations that are provided to other employees;
      • Do not fire, or refuse to hire, a woman based on the fact that she is pregnant;
      • A woman shall not be retaliated against for any reason related to her pregnancy; and
      • Time off for an employee’s pregnancy, or time off related to pregnancy, should not be used in the employee’s performance appraisal.
    • Ensure managers and supervisors comply with all federal laws.
    • A customer preferring non-pregnant women to pregnant women is not a valid reason to discharge the pregnant women.
    • Hiring:
      • It is inappropriate to ask an applicant about children, pregnancy, and plans to start a family. Such action may show pretext for pregnancy discrimination if a lawsuit should arise.
      • There should be no differentiation in the terms and conditions of employment between two individuals who are equal in all work-related qualifications, even if one individual is pregnant.
    • Respond to employee complaints effectively and efficiently, and make sure all procedures are well documented.

 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.