Does an employer have to provide a modified work schedule to a pregnant employee with morning sickness or light duty to a pregnant employee with lifting restrictions? The answer depends on who you ask. Most federal courts say no, but the U.S. Equal Employment Opportunity Commission says yes. Fortunately for employers, resolution of this issue is on the horizon.
On July 1, the U.S. Supreme Court agreed to decide the issue during its October term in Young v. United Parcel Service, 134 S. Ct. 2898 (U.S. 2014). The Supreme Court will decide whether employers that accommodate nonpregnant employees’ work limitations are required to do the same for pregnant employees with similar pregnancy-related limitations under the federal Pregnancy Discrimination Act. Although the Supreme Court will provide clarification on the issue under federal law, employers should be mindful that several states and cities, including New Jersey, New York City and Philadelphia, have laws that require employers to provide reasonable workplace accommodations to pregnant employees unless such accommodations would pose an undue hardship on the employer’s business. For now, one thing is certain: Employers should pay particular attention to this issue, because there is a growing trend in laws expanding the rights of pregnant women in the workplace.
Decision to Be Delivered Next Term
In Young, the plaintiff was employed pursuant to a collective bargaining agreement as an “air driver” for UPS, a position that required her to load packages weighing up to 70 pounds on a vehicle, transport them and unload them for delivery to customers or a service center. The plaintiff became unable to perform the essential functions of her job due to a pregnancy-related lifting restriction, but she was not eligible for an accommodation under UPS’s policy. Specifically, under its collective bargaining agreement, UPS provides temporary light-duty work assignments to drivers as an accommodation under the following circumstances: (1) injuries sustained on the job; (2) disabilities under the Americans with Disabilities Act; and (3) drivers who lose their Department of Transportation certification because of a failed medical exam, a revoked or suspended driver’s license or involvement in a motor vehicle accident. Pursuant to its policy, UPS declined the plaintiff’s accommodation request for light duty and placed her on unpaid leave.
In her complaint, the plaintiff alleged that UPS violated the PDA by failing to provide her with the same accommodations as it provided to nonpregnant employees who were similar in their ability to work. The district court in Young v. United Parcel Service, 2011 U.S. Dist. LEXIS 14266 (D. Md. Feb. 14, 2011), disagreed and granted summary judgment to UPS, holding that UPS’s determination not to accommodate the plaintiff’s lifting restriction turned on “gender-neutral criteria” and did not constitute direct evidence of discrimination. The U.S. Court of Appeals for the Fourth Circuit affirmed in Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013), the district court’s decision, concluding that UPS had crafted a “pregnancy-blind policy” by limiting accommodations to those employees injured on the job, disabled as defined under the ADA, or stripped of their DOT certification. The Supreme Court agreed to review the issue during its October term and will decide whether an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work” under the PDA.
EEOC Guidance Requires Reasonable Accommodation
On July 14, in a rather controversial move given the fact that this issue is now pending before the Supreme Court, the EEOC issued “Enforcement Guidance: Pregnancy Discrimination and Related Issues,” which states (among other things) that the PDA requires employers to provide accommodations to pregnant employees (even without an underlying medical condition) if they provide accommodations to nonpregnant employees, such as employees with disabilities under the ADA or on-the-job injuries. In its guidance, the EEOC explicitly states that “an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).”
The EEOC outlines potential reasonable accommodations, such as allowing a pregnant worker to take more frequent breaks, to keep a bottle of water at a work station, or to use a stool; providing modified tasks; providing a temporary light-duty position; or providing a leave of absence. The EEOC states that an employer may request medical documentation and conduct an undue hardship analysis of the pregnant employee’s accommodation request, if the employer follows the same procedure for nonpregnant employees’ accommodation requests.
Further, the EEOC explains if an employer’s light-duty policy places certain types of restrictions on the availability of light-duty positions, such as limits on the number of light-duty positions or the duration of light-duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to nonpregnant workers with similar accommodation requests.
Are Pregnant Employees Entitled to Accommodation?
Although pregnancy itself is not a disability under the ADA, some pregnant employees may have impairments related to their pregnancies that qualify as disabilities under the ADA. Accordingly, courts have held that pregnant employees may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. For example, pregnancy-related impairments of the reproductive system, such as disorders of the uterus and cervix, may cause physical restrictions that rise to the level of a disability under the ADA. One court recently concluded that multiple physiological impairments of the reproductive system requiring an employee to give birth by cesarean section may be disabilities for which an employee was entitled to a reasonable accommodation. By contrast, courts have consistently held that periodic nausea, vomiting, dizziness, headaches and fatigue are not disabilities within the meaning of the ADA because they are part and parcel of a normal pregnancy. Accordingly, the ADA does not require accommodation of the latter symptoms.
State and Local Pregnancy Accommodation Laws
Several jurisdictions have pregnancy accommodation laws that expressly require employers to provide reasonable workplace accommodations to pregnant employees absent a showing of undue hardship on the employer’s business. Many of these laws do not require the pregnancy-related restriction to rise to the level of a disability, and as such, unlike the ADA, these laws cover accommodation of symptoms such as morning sickness and fatigue. Jurisdictions with pregnancy accommodation laws include:
• Alaska (requires that public employers transfer a pregnant employee to a less strenuous or hazardous position as a reasonable accommodation).
• California (applies to all employers with five or more employees).
• Connecticut (applies to all employers with three or more employees and only requires temporary transfer as a reasonable accommodation).
• Hawaii (requires all employers to reasonably accommodate employees who have a disability related to pregnancy).
• Illinois (only applies to employees who are peace officers or firefighters of a public employer and requires transfer of a pregnant employee to a less strenuous or hazardous position as a reasonable accommodation).
• Louisiana (requires all employers with 25 or more employees to temporarily transfer employees who can reasonably be accommodated).
• Maryland (applies to all employers with 15 or more employees and requires accommodation only if pregnancy causes a disability).
• Minnesota (applies to employers who employ 21 or more employees at any worksite).
• New Jersey (applies to all employers).
• New York City (applies to all employers with four or more employees).
• Philadelphia (applies to all employers with at least one non-family member employee).
• Texas (only applies to county or municipal employers).
• West Virginia (applies to employers with 12 or more employees in the state).
Employers in jurisdictions that have state or local pregnancy accommodation laws should revise their reasonable accommodation policies and procedures to reflect the requirements included in the laws and train managers and human resources professionals on the changes. Employers in these jurisdictions should also be cognizant of their notice-posting requirements. Employers should note that several other states, including Pennsylvania, have pending legislation on this issue.
Finally, employers covered by the Family and Medical Leave Act should note that state and local pregnancy accommodation laws may require employers to grant additional unpaid leave beyond the 12 weeks of unpaid FMLA leave. Accordingly, employers located in jurisdictions with pregnancy accommodation laws have an obligation to review and consider accommodation requests seeking additional leave because of pregnancy or childbirth-related conditions.
Although the Supreme Court’s decision in Young will ultimately be the law of the land, employers (even those that are not located in jurisdictions with state or local pregnancy accommodation laws) should consider reviewing their practices and policies related to accommodation requests for pregnancy-related restrictions in light of the recent EEOC guidance. Further, employers with temporary light-duty programs that are limited to employees with work-related injuries may need to reconsider the programs to include pregnant employees with pregnancy-related restrictions. Finally, employers should expect the EEOC to enforce the PDA against employers that do not reasonably accommodate employees with pregnancy-related restrictions (absent undue hardship). These changes may be short-lived dependent upon the Supreme Court’s ruling in Young.
Tiffani L. McDonough is a labor and employment attorney with Obermayer Rebmann Maxwell & Hippel in Philadelphia and the editor of HRLegalist at www.hrlegalist.com. Her national practice includes representing employers in employment litigation and counseling on human resources matters, including pregnancy accommodation issues and the implementation of workplace policies. •