1. The Employer’s Guide to Pregnancy Accommodation Laws

2. Overview Federal statutes requiring some form of pregnancy accommodation Americans with Disabilities Act, as amended eff. 2009 Pregnancy Discrimination Act of 1978 Family and Medical Leave Act of 1993 State and local statutes

3. The Americans with Disabilities Act and Pregnancy Accommodation

4. Americans with Disabilities Act Applies to employers of 15 or more employees Smaller employers may be covered by state anti- discrimination laws Definition: A disability is a physical or mental impairment that substantially limits a major life activity.

5. Amendment Changes Everything The ADA was amended effective in 2009. The amendment did not change the definition of “disability,” but it changed its interpretation. Purpose of amendment: To make it easier for employees with disabilities to be protected by the ADA Three changes are key to pregnancy accommodation

6. Old (pre-amendments): Very restrictive definition of disability; few conditions found to be disabilities Now: Expansive definition of disability; many medical conditions qualify as disabilities

7. First Change Stemming from Amendments: “Major Life Activity” ADA now has non-exhaustive list of major life activities: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” EEOC added: sitting, reaching, and interacting with others AND now “major life activity” includes major bodily functions the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions EEOC added: special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions

8. Second Change Stemming from Amendments: “Substantially Limits” Old: Courts held that employee’s ability to engage in a major life activity had to be severely impacted before the employee could be deemed to have a disability New: “substantially limits” is not a demanding standard, does not require a severe restriction means that the employee is limited in a major life activity as compared to the general population

9. Example Maria is in her fifth month of pregnancy. She gets frequent migraines because of her pregnancy. Does she have a disability? Old: Probably not. Now: Probably yes. The migraines are an impairment, and they affect a major bodily function (neurological system, brain; also affects ability to concentrate) in a way that limits Gina as compared to the general population.

10. Third Change: No Duration Requirement Old: Disabilities that were short in duration (usually less than six months) were not considered within the ADA’s coverage New: Temporary conditions may be disabilities Duration is a factor, but not a bar Exception: impairments that are both transitory and minor may not be disabilities for “regarded as” ADA claims (not relevant to accommodation claims)

11. Application to Pregnancy First Step: Is There a Disability? Under both the old version of the ADA and the new amended version, pregnancy alone is not a disability. However, now EEOC regulations recognize that a pregnancy-related impairment that substantially limits a major life activity is a disability. 29 C.F.R. § 1630.2(h). Example: gestational diabetes

12. Example: Pregnancy-Related Impairment Pregnant employee cannot stand for eight hours because her feet are very swollen, which causes pain and numbness Old: No disability Now: Disability would likely be found the ability to stand is a major life activity (additionally, swelling involves the cardiovascular system) she is limited compared to the general population in her ability to stand; temporary nature of impairment is no longer a bar

13. Effect of Amendments Shifted the focus from whether the employee has a disability to whether the employer has accommodated the employee Example: Wanamaker v. Westport – teacher requested accommodation after injury in childbirth made it difficult for her to stand. She was allegedly terminated when the parties could not agree on an accommodation. Initially, motion to dismiss ADA claim granted because she was not disabled Amended complaint included allegations of impairment of major life activities of standing and walking In summary judgment motion, employer conceded disability and focused on whether it had accommodated her

14. Second Step: Duty to Accommodate Employers have a duty to provide reasonable accommodations to employees with disabilities, unless to do so would create an undue hardship. Failure to accommodate is disability discrimination under the ADA.

15. Reasonable Accommodation Modification of how, when, where employee works Enables the employee to do the essential functions of her job Employers do not have to remove or change essential functions (but can) Does not have to be the accommodation the employee prefers Employee is to be returned to original position once accommodation is no longer needed

16. Procedure: Trigger The employer’s duty to provide a reasonable accommodation is triggered by -Employee’s request -no special language needed -expression of difficulty or needing help is enough -Obvious need for accommodation

17. Procedure: Interactive Process Request triggers duty to engage in “interactive process” It’s an informal process  Employee describes what she is having difficulty doing  Employer and employee explore different options for making it possible for her to do her job  Back and forth direct communication is contemplated  Lack of information is not a defense unless employer attempts to get information and employee thwarts attempts

18. Procedure: Medical Information Employers can ask for medical information necessary to determine whether the employee has a disability. Request for information has to be limited to establishing the disability and the need for an accommodation. Tip: JAN (Job Accommodation Network) has a sample medical information form: http://askjan.org/media/medical.htm http://askjan.org/media/medical.htm

19. Third Step: Undue Hardship “An action requiring significant difficulty or expense,” considering (1) the nature and cost of the accommodation needed; (2)The financial resources of the facility or facilities, or the impact otherwise of such accommodation upon the operation of the facility; (3) employer’s finances, the number of its employees; the number, type and location of its facilities; and (4) the type of operation or operations of the employer (5) Impact on other employees. Burden on the employer to prove, must complete cost/benefit analysis

20. Types of Reasonable Accommodations Bathroom breaks Breaks for rest or water An accessible worksite A chair to sit on Modification of equipment, test, or training materials, or policies Time off for medical appointments Job restructuring

21. More Types of Reasonable Accommodations Lifting restrictions Most common request Look for creative solutions by focusing on essential function (e.g., function = moving boxes, so use cart or dolly) Schedule changes Helpful to deal with morning sickness, fatigue

22. More Types of Reasonable Accommodations Light duty -Do not have to create position -Cannot limit it to workers comp/on the job injuries any longer (post-Young v. UPS) Transfer or reassignment -Reasonable if no other accommodations would allow her to work -Do not have to create position or move employee already in position -Employee has to have requisite skills

23. More Types of Reasonable Accommodations Work from home Might not be required (fact specific inquiry about job duties, whether others work from home, etc.) Many employers allow it Leave Cannot force employee to take leave Reasonable only if no other accommodation Can be unpaid after exhaustion of accumulated paid leave Lengthy or open-ended leave not reasonable

24. Putting the ADA to Work: Is Accommodation Required for These Pregnant Workers?

25. Meet Gina Gina is experiencing swelling, which has caused carpal tunnel syndrome. She has asked for breaks from repetitive tasks that use her hands, and for breaks to use ice packs to reduce the swelling. Her supervisor tells her to use her regular morning, lunch, and afternoon breaks, and denies her request to change her duties or extend her breaks.

26. Does She Have a Disability? Carpal tunnel is a physical impairment that affects the major life activity of performing manual tasks May also limit lifting, reaching, cardiovascular system and musculoskeletal system She is limited compared to people without CTS Answer: Yes

27. What about Accommodation? Gina wants to take breaks from repetitive tasks and have breaks to ice her wrists. Both are probably reasonable; employer could start by offering one accommodation and see if the second is necessary. Breaks can be unpaid.

28. Meet Jessica Jessica is experiencing severe morning sickness. She has already been hospitalized once for dehydration, and she still can’t eat. She told her supervisor that she feels too weak to work, but she has used up all of her sick days. Her supervisor warned her that, under the attendance policy, she will be fired if she misses more time.

29. Does She Have a Disability? Severe morning sickness affects eating, concentration, and other major life activities It also affects the gastrointestinal system. Note that casual morning sickness may not be a disability (question is whether it is limiting as compared to the rest of the population) Answer: Yes

30. What about Accommodation? Jessica told her supervisor she felt too weak to work, which was a request for an accommodation and the employer should have started the interactive process. Allowing her to miss work (leave) may be a reasonable accommodation, but the employer should first see if there is another accommodation (schedule change, naps during the day) that would allow her to work. She may also be eligible for FMLA leave.

31. Meet Julia Julia is five months pregnant with a high risk pregnancy. She needs assistance lifting patients. Her supervisor denies her assistance and tells her she has to take FMLA leave if she can’t do her job.

32. Does She Have a Disability? High risk pregnancy affects the reproductive system She is limited compared to the rest of the population Answer: Yes

33. What about Accommodation? Julia asked for lifting assistance. The supervisor should discuss alternatives with her (assistive devises, co-worker help, light duty). Forcing her out on FMLA leave is asking for a lawsuit unless there are no other options. Note that if she exhausts her FMLA leave while she is still disabled, she cannot be fired because leave with a set end date may be a reasonable accommodation.

34. The Pregnancy Discrimination Act and Pregnancy Accommodation

35. Pregnancy Discrimination Act Applies to employers of 15 or more First Clause: Unlawful “sex” discrimination under Title VII includes discrimination based on pregnancy, childbirth, and related medical conditions Second Clause: Requires employers to treat pregnant employees the same as other employees who are similar in their ability or inability to work  Can treat pregnant employees better, just can’t treat them worse

36. PDA in Action Employers cannot refuse to hire an applicant because she is pregnant or because she is going to need to take maternity leave Employers cannot fire an employee because she is pregnant or will need to take a leave, or because customers will object to her appearance Employers cannot apply workplace rules more harshly to pregnant employees to make them quit or to justify terminating them or to punish them for getting pregnant

37. Accommodating Pregnant Employees: Young v. UPS (U.S. Supreme Court, 2015) Pregnant UPS driver had lifting restrictions. UPS had policy of accommodating employees with on the job injuries and other employees, but not pregnant employees. Supreme Court: Plaintiffs can proceed with their lawsuits if they show that pregnant women are burdened by an employer policy that does not accommodate pregnant women and the employer’s reasons for the policy are weak.  Cost and convenience are not acceptable reasons for not accommodating.

38. Lessons from Young Employers that provide accommodations to nonpregnant employees are required to provide similar accommodations to pregnant employees who have similar limitations on their ability to work, unless the employer has a strong, legitimate, and nondiscriminatory reason for treating the nonpregnant employees differently.  Employer’s reason must be sufficiently strong to justify any significant burden on pregnant women.  Policies limiting light duty to on the job injuries are likely not going to pass muster.

39. Putting the PDA to Work Sandra is fatigued because of her pregnancy. She has trouble arriving to work on time because she frequently oversleeps. She asked to adjust her hours so she can come in later and leave later, but her supervisor said no and disciplined her. Sandra complains to HR, noting that the company has a flexible work policy and plenty of other people work flexible hours. She also notes that others who come to work late are not disciplined. Is this discrimination?

40. Putting the PDA to Work (cont.) Answer: Probably yes. Sandra’s employer has a flexible work policy and allows others to work flexibly, so it would have to have a strong, legitimate, non-discriminatory reason for not allowing her to flex her hours. Disciplining Sandra for coming in late when others come in late and are not disciplined may be discriminatory if the others and Sandra are similarly situated. Note that after the Young decision, they do not have to be similar in all respects.

41. The Family and Medical Leave Act and Pregnancy Accommodation

42. Family and Medical Leave Act Applies to employers with 50 or more employees Employees are eligible if They work at a location with more than 50 employees in a 75 mile radius They have been employed by employer for 12 months (need not be consecutive) They have worked at least 1250 hours in the prior year They have not already exhausted their FMLA time for the prior year

43. Family and Medical Leave Act The FMLA allows pregnant women to take time off for: Prenatal visits pregnancy-related conditions (including morning sickness) childbirth/recovery/bonding Leave is limited to a total of 12 weeks per year.  Intermittent leave may be taken  Prenatal use reduces post-childbirth maternity leave.

44. The FMLA (cont.) Employees cannot be retaliated against for requesting or taking leave Employees who take leave under the FMLA have to be reinstated to their same jobs or substantially equivalent jobs Employees must give at least 30 days’ notice of need for leave, unless not possible (unforeseen)

45. The FMLA: Medical Certification Employers can request medical certification Permitted, not required For bonding time: can request documentation of birth or adoption Employers cannot ask for doctor’s note when she announces pregnancy Have to treat pregnant employees the same as non- pregnant employees (PDA) Employers cannot ask for note clearing her to return unless ask of all returning employees

46. More about the FMLA DC and California allow “leave stacking” – pregnant employees can use FMLA medical leave for their pregnancy-related illnesses and still have their full state law family leave for baby bonding If an employee cannot return at the end of leave for physical or mental conditions that are disabilities, the ADA may require additional leave as a reasonable accommodation

47. State Laws and Pregnancy Accommodation

48. States With Pregnancy Accommodation Laws Alaska California Connecticut Delaware Hawaii Illinois Iowa Louisiana Maryland Minnesota Nebraska North Dakota New Jersey Rhode Island Texas West Virginia

49. Local Jurisdictions with Pregnancy Accommodation Laws New York City Philadelphia Providence, RI/Central Falls, RI Washington, DC

50. Example: California It's illegal in California for an employer to refuse to provide reasonable accommodations to an employee for a condition related to pregnancy, childbirth, or related medical conditions. Californians can also receive a transfer to a less strenuous or hazardous position, if the request is reasonable. Cal. Gov’t Code §§ 12945(a)(3)(A); (a)(3)(C). 50

51. Example: Connecticut Employers have to try to transfer pregnant employees if their current position puts the employee or fetus at risk of injury. Conn. Gen. Stat. § 46a-60(a)(7)

52. Example: Philadelphia In 2014, Philadelphia passed an ordinance that requires employers to provide reasonable accommodations to employees for needs related to pregnancy, childbirth, or a related medical condition, so long as such accommodations will not cause an undue hardship to the employer. Phila. Code § 9-1128.