Pregnancy discrimination Q& A (based on HR Matters E-Tips Newsletter)
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Q. What laws govern the employment of pregnant workers?
A. Federal and state laws governing pregnancy generally fall into two categories – prohibitions against adverse employment actions and rules covering pregnancy-related leave.
The primary law prohibiting adverse employment actions against pregnant employees is the federal Pregnancy Discrimination Act (PDA).
The PDA classifies pregnancy discrimination as a form of sex discrimination. It applies to
employers with 15 or more employees and requires covered employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees with temporary disabilities.
Pregnancy-related leave is covered by the PDA, the Family and Medical Leave Act (FMLA) and, in limited circumstances, the Americans with Disabilities Act (ADA). These laws govern how pregnant employees should be treated when they are not able to work as a result of their pregnancy.
The PDA does not specifically require leaves for pregnant employees. However, you may not discriminate against pregnant employees, so you must offer them the same leave you provide for other employees who are temporarily disabled and need a leave.
The FMLA, in contrast, is a leave law applicable to many employers and employees. In addition, several states also have leave laws similar to the FMLA, or that apply only to pregnancy, that should be consulted.
Q. Is pregnancy covered by the ADA?
A. Generally, a normal pregnancy resulting in temporary disability is not covered under the ADA. However, in certain limited circumstances, a pregnant employee experiencing substantial complications that limit a major life activity may be considered disabled under the ADA and entitled to accommodation.
Q. Do we have to hire a pregnant applicant? What if we are concerned about her ability to do the job because of the pregnancy?
A. The PDA does not require that you hire pregnant women, but rather that you treat them the same way as other applicants with temporary disabilities. This means you may not refuse to hire a woman because of her pregnancy if she is qualified and is able to perform the job.
To avoid potential liability, you should not discuss an applicant’s pregnancy during an interview, even if her condition is obvious. Instead, you should focus on the requirements of the job and the candidate’s ability to meet them. If, for example, it is vital that the applicant start work immediately and take no leave for the first six months of employment, ask the applicant if she can meet those requirements. If she says she cannot, you are under no obligation to hire her. Just make sure you are imposing the same requirements on all applicants.
Q. May we require employees to tell us as soon as they know they are pregnant?
A. An employer may not burden pregnant workers with more stringent reporting rules than it requires of others who will need disability leave. Thus, if you only require 30 days notice of the need for foreseeable leave (as the FMLA allows), you may not require pregnant employees to give more notice.
Q. May we discipline a pregnant employee for performance and attendance problems?
A. Generally, yes. While a pregnant employee is protected from discrimination, you do not have to tolerate poor performance or attendance simply because she is pregnant. You may hold her to the same work standards as other employees, as long as you apply the standards consistently.
If her performance or attendance problems are related to her pregnancy (for example, she is late to work because of morning sickness or cannot lift boxes as required to perform her job), the PDA requires only that you treat her the same as you would any other employee with a temporary medical condition. Thus, if you allow employees with temporary medical conditions to be late because of their conditions or accommodate their lifting restrictions, you should apply the same standards to a pregnant employee.
Note, however, that if the woman is covered under the FMLA, you may have to take her pregnancy into consideration if her attendance problems are caused by pregnancy-related medical conditions. For example, the FMLA regulations state that any period of incapacity due to pregnancy, as well as prenatal care visits, is a “serious health condition” protected by the FMLA. Absences that qualify as FMLA leave, therefore, should not be counted when determining whether an employee’s attendance problems warrant discipline or discharge.
