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With the increase in success and availability of infertility treatment to assist in conception, it is becoming more common for pregnant employees to experience pregnancy-related complications that require them to stop working. Even in the absence of actual medical complications (e.g., pre-term labor, pregnancy-related hypertension, etc.), pregnant employees who have undergone months (if not years) of infertility treatment — and who may be expecting a multiple birth — will likely undergo more cautious medical treatment, including bed rest. Pregnant employees who seek leave time, but whose employers do not provide liberal leave policies, must rely on the law, which provides only limited relief to those who cannot report to their jobs for some period of their pregnancy. Laws protecting pregnant employees are numerous but generally fall into two categories: those that effectively provide leaves of absences and those that prohibit certain adverse actions. Leaves of absence are available to pregnant employees working for larger employers (with 50 or more employees) under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. �� 2601 et seq. Those seeking leaves while working for smaller companies must rely on the “reasonable accommodation” provisions of the federal, state and local disability discrimination statutes. Thus, a pregnant employee’s entitlement to leave time is largely dependent on whether she can claim coverage under the FMLA, or if she can establish a disability based on a medical complication, thereby allowing her to request a reasonable accommodation. The FMLA was passed by Congress in 1993 and is intended to apply to those who work for companies that employ 50 or more employees (for at least 20 weeks in the year). 29 U.S.C. � 2611(4). Pursuant to the FMLA, an employee who has worked for an employer for at least 12 months and 1,250 hours in the past year is entitled to take up to 12 weeks of unpaid leave during any 12-month period for “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. �� 2611(2); 2612(a)(1)(D). An employee seeking FMLA leave must provide her employer with 30 days’ notice of the need for such leave unless the needed leave is unforeseen, in which case the leave must be requested “as soon as practical.” 29 U.S.C � 2612(e)(1). The federal regulations inform us that a “serious health condition” includes: “ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth.” See H.R. Rep. No. 8(i), 103d Cong., 1st Sess., (1993). The FMLA makes it unlawful for employers to interfere with, or restrain, the rights provided under the act. 29 U.S.C. � 2615(a)(1). THE ADA AND STATE LAW Pregnant employees experiencing medical complications who are (a) working for employers with less than 50 employees; (b) working for employers with 50 or more employees but who have worked for said employer for less than 1,250 hours in the past year; or (c) covered by the FMLA but seeking to extend their leave beyond the 12 weeks provided under the FMLA may attempt to seek leave as a “reasonable accommodation” under the disability discrimination laws. Laws providing reasonable accommodations to disabled employees exist under federal, state and local statutes. The federal Americans with Disabilities Act, 42 U.S.C. �� 12101 et seq., requires employers (with 15 or more employees) to provide certain reasonable accommodations to a “qualified individual with a disability.” Among the “reasonable accommodations” is leave time. 29 C.F.R. � 1630.2(o)(2)(ii); Appendix to 29 CFR. � 1630(2)(o); Friedman v. Consolidated Edison Co., 1999 U.S. Dist. Lexis 10899 at *30 (S.D.N.Y 1999). Pregnant employees will find that they cannot easily avail themselves of the ADA’s reasonable accommodation provisions, as federal courts have been reluctant to offer pregnant employees protection under the ADA. See Conley v. United Parcel Service, 88 F. Supp. 2d 16, 19 (containing survey of decisions providing no coverage under the ADA); but see Cerrato v. Durham, 941 F. Supp. 388 (S.DN.Y. 1996) (wherein the court found complications related to pregnancy survived motion to dismiss ADA claim.) For example, an ADA claim of a pregnant employee was dismissed notwithstanding the fact that she had been hospitalized for one month prior to giving birth after her membranes ruptured. The court found that the plaintiff’s alleged disability did not qualify her for coverage under the ADA. See Cvern v. Enterprise Solution Providers Inc., 2001 U.S. Dist. Lexis 6500 (S.D.N.Y. 2001). Pregnant employees will likely find state laws more hospitable to their claims for leave time. For instance, in New York, the state law is more liberal regarding the definition of “disability.” Pregnancy, however is still not considered a per se disability. See Wunning v. Johnson, 114 A.D.2d 269 (3d Dept 1986), appeal den’d, 68 N.Y. 2d 601 (1986). Still, the New York Court of Appeals has made it clear that the New York State Human Rights Law’s definition of disability is to be construed more broadly than the federal definition. See State Division of Human Rights v. Xerox Corp., 65 N.Y. 2d 213 (1985); Reeves v. Johnson Controls World Services Inc., 140 F.3d 144, 154 (2d Cir. 1998); Epstein v. Kalvin-Miller International Inc., 100 F. Supp. 2d 222, 229 (S.D.N.Y. 2000). While federal law requires proof that a disability “significantly limits” a “major life activity” (42 U.S.C. � 12101(2)), the State Human Rights Law requires only “an impairment, not an impairment that substantially limits a major life activity.” Franklin v. Consolidated Edison Co., 1999 U.S. Dist, Lexis 15582, *27 (S.D.N.Y. 1999). The New York Court of Appeals has held that under the State Human Rights Law, “disabilities are not limited to physical or mental impairments, but may also include ‘medical’ impairments. … To qualify as a disability, the condition may manifest itself in one of two ways: (1) by preventing the exercise of a normal bodily function or (2) by being ‘demonstrable by medically accepted clinical or laboratory diagnostic techniques.’ ” State Division of Human Rights v. Xerox Corp., 65 N.Y. 2d 213 (1985), quoting N.Y. Exec. Law � 292(21). Therefore, the pregnant employee seeking a reasonable accommodation must be able to present to her employer proof of impairment “demonstrable by medically accepted techniques” in order to successfully invoke the State Human Rights Law. For example, under the New York State Human Rights Law, a licensed physician’s diagnosis of an employee’s heart disease and diabetes that failed to warrant coverage under the ADA was found to satisfy the state law’s broader definition of disability. Epstein, supra at 229-230. The court noted that the employer did not dispute “that plaintiff’s conditions were diagnosed by a licensed physician,” nor did the employer “challenge the reliability of the diagnosis” or suggest that the diagnosis was not based on “medically accepted clinical … [and] diagnostic techniques.” Id. at 229. In another decision, an employee who was prescribed bed rest, due to postpartum endometritis, was deemed to satisfy the State Human Rights Law’s definition of “disability.” However, the same employee failed to state a cause of action for disability discrimination, because she failed to provide her employer with any indication of when she might return to work from her leave (and indeed was unable to return to work at the time of her termination). Guzman v. Arc XVI Inwood Inc., 1999 U.S. Dist. Lexis 3983 *29-32 (S.D.N.Y. 1999). The same court found that plaintiff’s postpartum endometritis also constituted a disability under the New York City Administrative Code, but that the leave’s indefinite duration defeated her claim under the Code as well. Id. at *37. The decision is consistent with others holding that a request for indefinite leave does not entitle an employee to a reasonable accommodation, because said employee is deemed to be unable to perform the “essential functions” of the job, which include regular attendance. Id. at *36. See also Durrant v. Chemical/Chase Bank, 81 F. Supp. 2d 518, 521-522 (S.D.N.Y 2000). DISPARATE TREATMENT There is one other legal avenue to pursue for pregnant employees either seeking leave or who were terminated for taking unauthorized leave. In 1978, Congress passed the Pregnancy Discrimination Act (PDA), 42 U.S.C. � 2000e(k), which amended Title VII of the Civil Rights Act of 1964. The PDA provides in part that “women affected by pregnancy, childbirth, or related medical conditions, shall be treated the same for all employment-related purposes.” 42 U.S.C. 2000e(k). While the PDA does not expressly provide for leave time or any “reasonable accommodations,” the act may be used to secure leave time to the extent that such leave is provided to other temporarily disabled employees. See Moawad v. RX Peace, 1999 U.S. Dist. Lexis 7969, *19 (S.D.N.Y. 1999). According to federal regulations, an employer must “treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay, etc.” Appendix to 29 C.F.R Part 1604, Q&A No. 5. Pregnant employees are also entitled, under the New York State Human Rights Law and the New York City Administrative Code, to take advantage of leave benefits to the same extent as employees who are incapacitated by reasons other than pregnancy. See Matter of Cheektowaga Central School District v. Graziadei, 267 A.D.2d 985 (4th Dept. 1999). See also Wunning, supra at 271. Claims of pregnancy discrimination under state and local law are subject to the same analysis as applied under federal law. See Yang v. Radix Apparel Inc., 2000 U.S. Dist. Lexis 18705, *9, n.4 (S.D.N.Y. 2000); and Klausner v. lndustrial Risk Insurers Inc., 1999 U.S. Dist. Lexis 10219, *10-11 (S.D.N.Y. 1999). Thus, under this discrimination analysis, the pregnant employee who has been denied her request for leave would have to demonstrate disparate treatment by showing that other, nonpregnant employees experiencing temporary disabilities are afforded more generous leave benefits. Notwithstanding the existence of numerous laws that provide leave time, pregnant employees not covered by the Family and Medical Leave Act are often without much recourse when leave time is denied to them. As the definition of “disability” becomes harder to satisfy under the Americans with Disabilities Act, pregnant employees claiming leave under disabilities statutes must look to state an additional opportunity to claim leave time, but only if pregnant employees can demonstrate that they are treated differently from others with temporary disabilities. James A. Brown is an attorney based in New York.

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