United States: Pregnancy Discrimination: No End In Sight

Q: My employee who is 8 months pregnant just called stating she can no longer work because of pregnancy complications. Do we have to provide her with leave, pay her while out, maintain her benefits, or keep her job open for her?

A: Before answering this specific question, we should take a look at this issue in a broader context. National statistics indicate that there is still much confusion about a pregnant woman's rights in employment: there has been no discernible decrease nationally in the number of pregnancy discrimination charges filed in the past 10 years – in fact the number of charges has increased. According to Equal Employment Opportunity Commission (EEOC) statistics from 2013, women who work in healthcare & social assistance filed the largest number of pregnancy charges, followed by the retail industry, accommodation and food services, administrative support, and manufacturing industries. Women who work in these industries tend to be the lowest paid. In response to the continuing discrimination against pregnant workers, this July the EEOC published Enforcement Guidance on Pregnancy Discrimination and Related Issues (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm). The Guidance reminds employers that women who are considering becoming pregnant or who have the potential to become pregnant cannot be discriminated against in the hiring, employment or termination processes.;

There are several laws at a state and national level that apply here. NH's anti-discrimination law that covers employers with six or more full and part-time employees, not only provides protection from pregnancy discrimination, but gives a pregnant woman the right to reinstatement to her original job or a comparable position when she is physically able to return to work unless business necessity makes this impossible or unreasonable. The Pregnancy Discrimination Act (PDA) is a Federal law the covers companies with 15 or more employees. The Americans with Disabilities Act Amendments Act (ADAAA) requires that employers provide a reasonable accommodation (leave or job modification, for example) for a disability related to pregnancy unless doing so is an undue hardship (significant difficulty or expense) to the company. The Family and Medical Leave Act (FMLA) may also provide additional leave rights to pregnant employees to employers with 50 or more employee within a 75 mile radius. Finally, the company's own leave policies and leave practices must be taken into account, since the pregnant employee must be treated in the same manner as any employee requesting a leave of absence for a medical reason.

Turning to the specific question posed, the company must grant this pregnant employee leave for the period of time that she is physically disabled due to pregnancy, childbirth or related medical conditions as determined by a doctor. In this way, pregnancy is treated the same way that any other temporary physical disabilities are treated by the company. For example, if the pregnant employee experiences difficulty in performing her work and approaches the company for an accommodation, the company must engage in an interactive process with her to determine what accommodations can be made so that she can continue to do her job. The company should not assume that just because its employee is pregnant, she is unable to perform the essential functions of her job. To make such an assumption (and worse, act on that biased view) will expose the company to claims of discrimination and possibly harassment.

The determination of an appropriate accommodation involves understanding the employee's essential job functions and interacting with her treating physician to determine what is necessary to enable her to continue to fulfill her obligations. Accommodations could include providing light duty, a stool to take a break from long periods of standing, reserved parking, periodic rest, more frequent food and bathroom breaks, alternative assignments, disability leave, or unpaid leave, as done for other temporarily disabled employees.

If a medical leave of absence is the necessary reasonable accommodation, the company must continue to pay its pregnant employee if it pays other temporarily disabled employees when they are absent due to a medical condition. If the company has a policy that employees absent for a medical reason must use vacation and/or sick, then the company may require the pregnant employee to use her vacation and/or sick time when out of work. In terms of health insurance coverage, the company must continue to provide the coverage if it continues to provide coverage for employees who are out of work because of a temporary disability. The company can continue to require that the pregnant employee pay her portion of the insurance premium. However, if the company has, in the past, paid the full portion of the health insurance premium for employees out of work for temporary disabilities and not required the employees to pay back his or her portion of the premium, then it must pay the entire premium for the pregnant employee.

The issue as to how long an employee may be out on pregnancy leave is one which depends, in part, on which laws the company must comply with. For example, a company with 3 employees is not covered by any of the laws named above. However, that company will be held accountable based on its policies and practices related to its treatment of other employees who have been absent for medical reasons. If the company has 6 or more employees, but fewer than 15 employees, then it is covered by NH's pregnancy and disability related laws. In that case, the company must allow the employee to be out for the duration of her pregnancy related illness and be reinstated upon being released to work. If the company has more than 15 employees, but fewer than 50, then it must comply with NH law and the PDA. If the company has 50 or more employees, then, in addition to the above mentioned laws,  the company must comply with the FMLA which allows a pregnant women to be out of work for up to 12 weeks, unpaid, in addition to any greater benefits provided by other laws.

While out on a pregnancy leave, the company may hire a temporary replacement, however when the employee returns to work, her former position must be made available to her. The company must be sure that its supervisors do not retaliate against the returning employee. Retaliation can take many forms including, excluding new mothers from job opportunities on the assumption that they would prefer to be at home with their babies, delaying promotion, and changing job responsibilities. Claims of retaliation comprise the largest number of charges filed and continue to grow.

In conclusion, companies should ensure that their handbooks, including leave policies, are up to date and are being applied consistently among employees. Companies should also ensure that its supervisors understand a pregnant employee's rights and understand how bias can result in a costly claim of retaliation. One of the most cost effect ways to educate supervisors is through supervisory anti-discrimination training. While a company may feel inconvenienced while an employee is out on a medical leave of absence, it will reap the reward of treating its pregnant employees fairly by following the law – employee loyalty along with a favorable reputation in the community.

Published in the New Hampshire Business Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions