Barefoot and Pregnant: Where Do You Stand?

On August 24, 2014 by Alix R. Rubin, Esq.

UPS driver Peggy Young was pregnant and could not lift more than 20 pounds. She asked to be placed on light duty. UPS’ policy was to provide light duty only to those injured on the job or who qualified as disabled. UPS said Ms. Young was neither.

Since she cpregnant employeeould not perform her job with the lifting restriction and was “too much of a liability,” UPS told her to go barefoot stay home.

Ms. Young sued in federal court in Maryland under the Pregnancy Discrimination Act. She lost in the district court and also at the Fourth Circuit Court of Appeals.

Had she been pregnant and denied light duty this year, she would have won under the amended Maryland law. Other jurisdictions like New Jersey, New York City and Philadelphia also now require employers to accommodate pregnant workers.

EEOC Votes for Light Duty

The U.S. Supreme Court has decided to hear Ms. Young’s case. Meanwhile, the Equal Employment Opportunity Commission updated its 30-year-old guidelines on pregnancy discrimination.

The EEOC guidance disagrees with the Fourth Circuit. The guidance says that the PDA does require employers with 15 or more employees to provide light duty for a pregnant employee, even if the employer limits light duty to those injured on the job or who are disabled under the Americans with Disabilities Act.

The guidance is not law; it interprets the various federal laws covering pregnancy discrimination. But the EEOC can enforce its guidance, and courts may give it deference. We’ll see how the Supreme Court rules next term.

Nonetheless, employers – particularly those in such places as New Jersey, Maryland, New York City and Philadelphia – should update their policies and train their staff to provide reasonable accommodations to pregnant employees.

Key Takeaways

Here are six key takeaways from the EEOC guidance:

  • You must treat pregnant workers the same as non-pregnant workers similar in their ability or inability to work. This does not give pregnant employees “most-favored-nation status.” But it does create a reasonable accommodation requirement for healthy pregnancies. (The amended New Jersey Law Against Discrimination (“LAD”) has the same requirement and applies to all employers, regardless of size.)
  • Pregnancy itself is not a disability. But such pregnancy-related, temporary medical conditions as nausea, sciatica, high blood pressure and post-partum depression are. Pregnant workers with these and other pregnancy-related impairments may be entitled to such accommodations as:

o   a redistribution or modification of such nonessential functions as occasional lifting,

o   more frequent breaks or other schedule changes,

o   keeping a water bottle at or near a workstation,

o   using a stool,

o   light duty,

o   telecommuting, and

o   leave.

   (The LAD also requires reasonable accommodations for pregnancy-related conditions.)

  • Discrimination based on current pregnancy, past pregnancy (as long as four months after childbirth), and potential or intended pregnancy is prohibited. Potential or intended pregnancy includes reproductive risk, infertility treatment, use of contraception and abortion.
  • If you think the stress of your employee’s position would increase risks associated with her pregnancy, but she is still able to perform her job, you may not compel her to take leave.
  • If you allow employees to change their work schedules or use sick leave for routine doctors’ appointments and to address non-incapacitating medical conditions, you must allow the same for female employees who are breastfeeding. (A provision of the Patient Protection and Affordable Care Act also requires you to provide reasonable break time and a private place – other than a bathroom – for lactating employees to express milk.)
  • If you provide leave to new mothers beyond the period of recuperation from childbirth to bond with and care for their baby, you must provide an equivalent amount of such leave to new fathers. (This is also required under New Jersey’s Family Leave Act and Paid Family Leave Law.)

The complete EEOC guidance is available here. Click here for questions and answers and here for a fact sheet.

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