With expanded participation of women in the workforce, there is
a need to adapt the workplace to pregnant and breast-feeding
workers. Enacted in 1978, the Pregnancy Discrimination Act banned
employment discrimination on the basis of pregnancy, childbirth
or related medical conditions. Most employers are aware that the
Equal Employment Opportunity Commission (EEOC) defines
"pregnancy discrimination" as "treating a woman
unfavorably because of pregnancy, childbirth or a medical condition
related to pregnancy or childbirth." Employers can't
discriminate on the basis of pregnancy by refusing to hire, train,
promote or provide equal pay, insurance or other benefits because
of an employee's pregnancy. Nor can an employer
discriminate against a pregnant worker or applicant because of
customer, co-worker or client prejudice.
In 2008, Congress amended the Americans with Disabilities Act
(ADA) by extending legal protection to temporary
impairments of "major life activities." Although
pregnancy is not a "disability," temporary medical
complications resulting from pregnancy, such as severe nausea,
gestational diabetes, post-partum depression, etc., may constitute
"disabilities" within the meaning of the ADA. If a
woman is temporarily unable to perform her job due to a medical
condition related to pregnancy or childbirth, the EEOC expects the
employer to treat her in the same way as other temporarily
In recent years, the EEOC increased attention on whether
employers were engaged in an "interactive process" to
explore reasonable accommodations for employees temporarily
disabled by pregnancy-related medical complications.
Temporary reasonable accommodations might include rescheduling
early-morning meetings, reassigning shifts or making other work
adjustments that enable the employee to perform her job while
pregnant. Employers need not adopt a requested accommodation
that poses "undue hardship" to the employer.
Even healthy employees who are not "temporarily
disabled" may have pregnancy-related conditions that challenge
their ability to work. A glance at any online forum for
pregnant employees demonstrates that healthy, pregnant employees
juggle work needs with concerns for the health of their child and
themselves. Employees who do not qualify for legally mandated
accommodation may request leave to avoid work environments they
fear pose potential hazards to their pregnancy.
Pregnant employees who qualify for leave under the Family
Medical Leave Act (FMLA) are entitled to 12 weeks unpaid leave
because pregnancy is a "serious health condition."
New mothers usually want to reserve some of their 12-week FMLA
leave to care for their newborn. If an employer can accommodate
weight-lifting restrictions temporarily to permit a pregnant
employee to work longer during her pregnancy, both the employer and
The 2010 Patient Protection and Affordable Care Act also
promotes accommodation by requiring employers to provide both
private space (other than a bathroom) and unpaid break time for one
year after birth for expressing breast milk. Employers of
fewer than 50 employees may gain exemption by proving compliance
would impose an "undue hardship." The Act does not
pre-empt state laws that mandate greater accommodation.
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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In the article, "Three Handbook Policies to Rethink Immediately," featured in the September 2016 edition of WCR, Attorneys Wendy Coats and Rochelle Nelson discuss three policies restaurants should consider removing from their employee handbooks immediately
It is commonly understood that under the FMLA, an eligible employee of a covered employer is entitled to 12 workweeks of leave during a 12-month period for the birth of a child, the placement of a child for adoption or foster care, . . .
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