New Enforcement Guidance on the Pregnancy Discrimination Act Stirs Controversy at the EEOC-Part 2

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

In my last post I provided background on the Pregnancy Discrimination Act of 1978 (“PDA”), and the PDA Enforcement Guidance recently issued by the Equal Employment Opportunity Commission (“EEOC”).  I also discussed the controversy that was created when two of the five EEOC Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the new Guidance.  Their criticism seems especially accurate in light of the fact that the US Supreme Court has agreed to hear a case, Young v. United Parcel Service, Inc., which – depending on the Court’s decision – may make the new Guidance moot.  And finally, I pointed out that, in the absence of such a decision, this EEOC Guidance clearly and dramatically expands the rights of employees under the PDA.

Employer Compliance Points

Setting aside the controversy, and the upcoming Supreme Court case, there are a few important points employers should take from the new Guidance:

An employer may be in violation of the PDA if it does not reasonably accommodate a pregnant worker

Based on the language in the Guidance, employers are now required to reasonably accommodate a pregnant employee because she will be viewed as the “same or similar” to another temporarily disabled employee regarding her ability, or inability to work.

The Guidance identifies several potential “reasonable accommodations” for pregnant employees:

  1. Redistributing marginal functions that the employee is unable to perform due to the disability. Marginal functions are non-essential job duties.
  2. Altering how an essential or marginal job function is performed (i.e. modifying standing, climbing, lifting, or bending requirements)
  3. Modification of workplace policies (i.e. allowing an employee to have water with her at all times despite a company policy prohibiting water near workstations)
  4. Purchasing or modifying equipment and devices (i.e. allowing an employee working at a counter to sit on a stool while she serves customers)
  5. Modifying work schedules (i.e. allowing an employee to leave for a doctor appointment during day and make up the work time before/after the shift)
  6. Granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
  7. Temporary assignment to a light duty position.

The employer does maintain some control – the accommodation still has to be reasonable, and the employer has the option to choose its preferred accommodation, not necessarily the one the employee prefers.  The accommodation may also be refused altogether if the employer can show it would cause undue hardship.

DO NOT make decisions for pregnant employees

One very easy way to get in trouble is by making decisions about a pregnant employee’s work situation without involving the employee.  (“No more overtime for you while you’re pregnant…you need your rest!“)  The bottom line is, if the pregnant employee is willing and able to perform the job, the employer generally is required to allow her to work.

Men and women must be treated equally regarding parental leave

While providing women with separate paid or unpaid leave for childbirth and/or childbirth-related conditions is fine, employers must be careful not to provide more paid or unpaid “parental” leave, for bonding and/or caring for a child, to women than is provided to men.  According to the Guidance, doing so violates the law.  Review your parental leave policies to ensure there is a clear distinction between the types of leave offered.

Take a practical approach and look at the big picture

Unless pregnancy-related accommodation requests truly create an undue hardship, consider the potential benefits, like increased employee morale, employee loyalty and the retention of valued employees, and being an employer-of-choice in your community.  Often these benefits outweigh the costs and may have a positive impact on the bottom line.

Enforce all policies consistently

This is especially important when it comes to leave policies.  Let’s say you allow a non-pregnant employee to take unearned vacation time for a once-in-a-lifetime trip to Europe.  Then a request for unearned vacation time by a pregnant worker for additional time to rest should also be granted.

What’s Next

As companions to the Guidance, the EEOC has issued a fact sheet for small businesses, as well as a list of FAQs.  These documents, although written in standard, government-issued terminology, do provide employers with a basic understanding of the general prohibitions and requirements under the PDA, and the ADA as it applies to pregnancy-related disabilities.

Starting immediately, employers should follow this new Guidance, because – unless/until the Courts or Congress say otherwise – these are the rules the EEOC will enforce going forward.  Stay tuned…I think the fun has just started!

Frank-

Please feel free to contact me at frank@drivenhr.com, or 585-672-4142, x15 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here. 

Click HERE to learn more about Frank Cania, author of Employers’ HR Advisor.

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