1. Pregnant Employees With a “Disability” Under the ADA/ADAAA Receive Reasonable Accommodation
This concept is not new. The guidance reiterates a pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from: (1) pregnancy-related conditions that constitute a disability or (2) the interaction of the pregnancy with an underlying impairment.
The EEOC lists the types of possible accommodations, absent undue hardship:
- Redistributing marginal functions (nonessential job duties)
- Altering how an essential or marginal job function is performed
- Modifying workplace policies
- Purchasing or modifying equipment or devices
- Modifying schedule
- Granting additional leave
- Reassigning employee to open, available position for which the employee is qualified
Again, nothing new or earth shattering as to this list—they are the same as the accommodations listed under the ADA guidance.
Here are selected examples provided in the guidance:
1. Pregnancy-Related Impairment Constitutes a Disability (Regardless of Duration) Requiring Accommodation
A clerk responsible for receiving and filing construction plans for development proposals was diagnosed with a pregnancy-related kidney condition that required that she maintain a regular intake of water throughout the workday. She was prohibited from having any liquids at her workstation due to the risk of spillage and damage to the documents. Her manager arranged for her to have a table placed just outside the file room where she could easily access water
2. Limitations Resulting From Interaction of The Pregnancy With Underlying Impairment/ Disability
An employee with depression found that her condition worsened during her pregnancy because she was taken off her regular medication. Her physician provided documentation indicating her symptoms could be alleviated by a counseling session each week. Since appointments for the counseling sessions were available only during the day, the employee requested that she be able to work an hour later in the afternoon to cover the time. The manager concluded that, because the schedule change would not adversely affect the employee’s ability to meet with customers and clients, and that some of the employee’s duties, such as sending out shipments and preparing reports, could be done later in the day, the accommodation would not be an undue hardship.
The Takeaway: If a pregnant employee has an impairment which limits a major life activity either caused by or related to the pregnancy, or an underlying impairment exacerbated by the pregnancy and meets the definition of “disability” under the ADA/ ADAAA, the employee would be eligible for a reasonable accommodation, absent undue hardship. The pregnant employee’s request for special treatment linked to her medical condition begins the interactive process. The employer should follow all normal steps for processing the accommodation request (e.g., employee completes Medical Questionnaire; healthcare provider completes and certifies Medical Questionnaire; contact JAMS for ideas for accommodations; consider alternative accommodations; meet with employee to discuss all available accommodations; select effective accommodation and communicate decision to employee).
2. Non-Disabled Pregnant Employees Also Receive Reasonable Accommodation
The controversial and far reaching aspect of the new guidance is the EEOC’s dictate requiring employers to treat pregnant workers “the same as other employees who are similar in their ability or inability to work.” The EEOC reasons Title VII requires individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. See 42 U.S.C. § 2000e(k).
Based on this statement of the law, the EEOC concludes: “[I]f a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a coworker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an ‘undue hardship,’ since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.” That is to say, the EEOC’s position is that pregnant employees who are not “disabled” under the ADA/ ADAAA definition of “disability” are nonetheless eligible to receive the same reasonable accommodations as “disabled” employees. In this way, the EEOC is applying the “reasonable accommodation” and “undue hardship” standards on non-disabled employees, thus expanding and extending the reach of the ADA/ ADAAA to non-disabled employees.
Under the new guidance, an employer is expected to offer benefits to pregnant workers on the same terms it offers benefits to other workers, similar in their ability or inability to work. In plain language—the EEOC expects employers will accommodate pregnant employees with the same accommodations offered to employees with disabilities under the ADA/ ADAAA and/or who are injured on the job. That is to say, a pregnant employee is to receive the same accommodation as a disabled employee, despite the fact the pregnant employee may not be in fact “disabled” under the ADA.
The EEOC particularly focuses on the duty to accommodate pregnant employees with a light duty position. The EEOC’s light duty example:
Employer Does Not Provide Equal Access to Light Duty
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute and injury, illness or disability, and that the employee has not provided any evidence that the restriction . . . constitutes a disability under the ADA. The employer has violated the PDA [Pregnancy Discrimination Act] because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.
The EEOC further states: “An employer does not violate the PDA when it offers benefits to pregnant workers on the same terms that it offers benefits to other workers similar in their ability or inability to work. Therefore, if an employer’s light duty policy placed certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.”
However, the employer’s restrictions have to be equally applied, as demonstrated in this example:
Employer Does Not Apply Restrictions Equally
An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on-the-job injury, pregnancy, or an injury, illness or condition that would constitute a disability under the ADA. A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy. The employer denies the request, claiming that all six positions are currently filled. The employee produces evidence that in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled. The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position.
The Takeaway: Under the new guidance, employers are expected to accommodate a pregnant employee, even if she does not qualify as “disabled” under the ADA/ ADAAA, by offering the same accommodations provided to other employees who are either “disabled” under the ADA/ ADAAA or who receive accommodations as a result of a work place injury or accident (worker’s compensation). Therefore, to comply, when a pregnant employee requests accommodation, follow the regular steps for accommodating ADA/ ADAA disabilities but keep in mind a pregnant employee still would be eligible for an accommodation previously provided to a disabled or injured employee, even if the pregnant employee is not disabled. To determine what accommodations fall within this category, an employer will need to take inventory and keep accurate records of all accommodations provided to employees, including accommodations provided to disabled employees, employees injured on the job, and pregnant employees.
Takeaway II: The guidance allows for restrictions to accommodations (or at least light duty accommodation), as long as the restriction is equally enforced as to disabled employees, employees injured on the job, and pregnant employees. Therefore, employers are advised to review its accommodations and light duty policies in light of this guidance and consider adding restrictions to ensure light duty is not over utilized. However, what remains unclear is how the EEOC will reconcile such restrictions in light of the ADA/ ADAAA’s expectations that such restrictions may need to be reasonably accommodated as well.
There’s still more to discuss on this guidance. Next week will consider whether the guidance is enforceable.