More Pregnancy discrimination Q& A (based on HR Matters E-Tips Newsletter)
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I have been reading these newsletters for a while and find them generally quite accurate and informative on basic HR issues.
Q. Do we have to provide light duty or part-time work for pregnant employees?
A. Depends on your policies and employee’s Family and Medical Leave Act (FMLA) eligibility.
Policy: Pregnancy Disability Act (PDA) does not specifically require employer to transfer pregnant employee to light duty position or part-time work to accommodate pregnancy. However, if you have a policy or practice that normally allows employee with temporary medical condition to transfer to position that better accommodates the condition or to work part-time, you should do same for pregnant employee.
FMLA: FMLA allows employees with serious health conditions, including conditions related to pregnancy, to take leave on reduced work schedule if “medically necessary.” Reduced work schedule refers to schedule that reduces employee’s usual number of hours for a period of time, such as switching from full-time to part-time for several weeks.
According to FMLA regulations, reduced work schedule is “medically necessary” if employee has serious health condition that requires treatment regimen best accommodated by this type of leave. Thus, if health provider certifies pregnant employee’s medical status qualifies as serious health condition, and certifies need for part-time work, you may have to provide that schedule. FMLA does not specifically require light duty, however.
Q. May we require a pregnant employee to take leave if we think her job will endanger her pregnancy?
A. Generally, you may not require a pregnant employee to take leave if she can perform her job duties. According to an EEOC policy guide, an employee who can perform the essential functions of a job must be considered eligible for employment, regardless of the presence of workplace hazards to fetuses. It does not matter that the employer may be able to prove the worker will be exposed to materials harmful to fetuses or that an employer will incur greater costs in hiring women. Accordingly, if the employee is able to perform the job functions, your only course of action may be to notify her of the potential hazards and encourage her to discuss them with her doctor.
If, however, the employee is unable to perform the job functions, such as if she is restricted in standing or lifting, you can offer her a leave, or a transfer if a position is available, as allowed by your normal policies or the FMLA (if that law applies).
Q. How much leave do we have to offer pregnant employees?
A. The two major federal laws regulating pregnancy and childbirth leaves are the PDA and the FMLA.
PDA: Because the PDA is a discrimination law rather than a leave law, it does not require covered employers to give pregnancy leaves of any specific duration. Instead, it requires employers to provide pregnant employees the same leave and benefits granted to nonpregnant employees with temporary disabilities.
According to the EEOC, policies relating to commencement and duration of leave, availability of leave extensions, accrual during leave of seniority and other benefits and privileges, insurance coverage, and reinstatement after leave all must apply equally to both pregnancy and other temporary medical disabilities.
FMLA. In contrast, FMLA is a leave law, and requires covered employers to give eligible pregnant employees unpaid leaves of up to 12 workweeks during any 12-month period. FMLA provides leave for pregnant employees in two circumstances. First, an employee may take FMLA leave if unable to work because she has a serious
health condition related to pregnancy. FMLA regulations state that any period of incapacity due to pregnancy, as well as prenatal care visits, is a serious health condition. Alternatively, once the employee is able to return to work after giving birth, she may take any remaining FMLA leave to care for her newborn child (up to a total of 12 weeks of leave in a 12-month period). In addition, state law should be consulted since a few states (such as California and Tennessee) have enacted laws that require pregnancy leaves. These state laws typically require longer pregnancy leaves than
the leave mandated by the federal laws.
Q. May we offer pregnant employees more leave than we offer employees with other temporary disabilities?
A. Although employers may not treat pregnant employees worse than other temporarily disabled employees, some preferential treatment of pregnant employees may be lawful. One clarification should be noted. This preferential treatment may apply only during the period when the employee is actually disabled as a result of pregnancy. Employers generally must give the same leave benefits to both male and female employees who take parental leave to care for a newborn. Therefore, if you offer female employees leave for childcare when no
disability exists, you also should offer male employees equivalent leave.
Q. Do I have to reinstate employees who take pregnancy-related leave?
A. The FMLA specifically requires reinstatement, while the PDA requires consistent treatment of pregnant employees.
FMLA: Generally, FMLA requires that an employee be restored to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. FMLA does not require reinstatement for leaves after the FMLA’s 12-week entitlement has been exhausted.
PDA. PDA requires employers to permit an employee on pregnancy leave to return to her job on the same basis as other employees returning to work from sick or disability leave. For example, the reinstatement of an employee returning from pregnancy leave may not be conditioned on the availability of an appropriate vacancy, if the same restriction does not apply to employees returning from other disability leaves. Similarly, you may not require an
employee returning from pregnancy disability leave to certify her ability to return to work, unless all employees returning from medical leaves to the same type of job are required to do so.
HR Matters comments:
“Many employers are uncomfortable when dealing with pregnant employees because they do not understand their obligations and are afraid of making mistakes that could lead to costly lawsuits. However, you should not let compliance fears keep you from making legitimate job-related decisions. A sound grounding in pregnancy discrimination and
leave issues will help you find practical solutions to the questions that arise. ”
“Remember, the primary requirement is to treat pregnant applicants and employees the same as you treat other candidates and employees with temporary medical conditions. In other words, be fair and consistent. Then, if you run into problems, it’s always wise to have access to legal counsel for help in analyzing decisions and in protecting against
discrimination and FMLA claims.”
Good advice
