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.

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