“EXTREMELY FAR REACHING” EEOC GUIDANCE ON PREGNANCY DISCRIMINATION AND ACCOMMODATION
That’s David Fram’s (NELI ADA Guru Extraordinaire) characterization of the EEOC’s latest “Enforcement Guidance: Pregnancy Discrimination and Related Issues” issued on Monday.
ISSUE No. 1: Is pregnancy an actual “disability” as defined by the ADA (i. e., a mental or physical impairment that substantially limits one or more major life activity)?
We’ll closely examine the guidance and its implications on the ADA over a series of posts, but for now let’s tackle the initial issue. The starting place for every accommodations issue—does the employee have an actual “disability” as defined by the ADA?
Human Resources professionals have been accustomed to automatically dismiss a pregnancy as not being a disability under the ADA, and with reason—a pregnancy is a temporary condition and normally doesn’t involve a mental or physical impairment substantially limiting a major life activity.
Not so fast! As you will see below, the EEOC now suggests many pregnancy-related conditions constitute a “disability” and thus require accommodation.
• The EEOC guidance confirms the longstanding interpretation that “pregnancy itself is not an impairment within the meaning of the ADA, and it is never on its own a disability.”
• However, the guidance notes many women suffer from impairments related to their pregnancy which will qualify them as disabled under the ADAAA. Some pregnancy-related impairments would obviously qualify as a “disability,” such as:
- Impairments of the reproductive system making a pregnancy more difficult
- Disorders of the uterus and cervix, e.g., cervical insufficiency requiring bed rest
- Pregnancy-related anemia (affecting normal cell growth)
- Pregnancy-related sciatica (affecting musculoskeletal function)
- Pregnancy-related carpel tunnel syndrome (affecting neurological function)
- Gestational diabetes (affecting endocrine function)
- Pelvic Inflammation
- Symphysis pubis dysfunction
- Abnormal heart rhythms
• The EEOC also included pregnancy-related impairments that previously would have been considered as a part of the run-of-the-mill pregnancy and would not have reached the level of a “disability,” thus marking the EEOC’s continued expansive view of what now constitutes a “disability.” These impairments now may be considered a disability, including:
- Nausea causing dehydration
- Swelling of the legs
- “High Risk” pregnancies without an identified impairment
- Back pain
- Complications requiring bed rest
- Cesarean section
- Aftereffects of a delivery
• The EEOC instructs employers should not engage in “exhaustive analysis” of whether an impairment is a covered disability and instead construe the definition of “disability” broadly—fitting with EEOC’s advice to skip the “disability” analysis entirely and instead focus exclusively on providing reasonable accommodations.
The Takeaway: Don’t dismiss a pregnant employee’s request outright. When a pregnant employee requests a reasonable accommodation (modification of a workplace rule, leave, altering job functions, temporary assignment to light duty, change in work schedule) because of any pregnancy-related medical issue (even if undefined by the employee), take the following steps:
- Treat the request as if it is a request for accommodation under the ADA
- Engage in (and document) the interactive process
- Provide the employee with an ADA/ ADAAA compliant questionnaire (also compliant with HIPAA and GINA) to determine whether the employee has a “disability”
- Ensure the pregnant employee’s healthcare provider validates the impairment, the major life activity limited, the need for an accommodation, and the requested/ effective accommodations.
- Consider other accommodations—remember the employer chooses an effective accommodation.
- Communicate accommodations decision to employee.
Stay tuned . . . next post on specific accommodations for pregnant employees—including the controversial reassignment to light duty!