7.18.2014

The EEOC Looks Out For Pregnant Workers (and Expectant Dads, too)


Although I have always been supportive of family leave and pregnant worker issues, now that I am about to become a dad, the new EEOC guidance on the interplay between pregnancy and the Americans with Disabilities Act resonates even more:

So headsup, business owners, startups and employers:
Earlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future. 
As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions. 
The Guidance seems to boil down to this critical provision: 
"By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work."
Overall, Jeff Nowak makes a comprehensive analysis of the EEOC's guidance regarding pregnant employees (and expectant dads) that is well-worth the read. 

He also offers these insights to employers:
The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA. 
Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims. ...This is serious stuff, and employers should heed the EEOC’s Guidance, unless the Supreme Court tells us otherwise — a proclamation which may come by June 2015.  
In addition, Eric Meyer offers the following 5 tips to Employers
As you all should know, the Pregnancy Discrimination Act, which is part of Title VII, makes it unlawful to discriminate in the workplace based on pregnancy, childbirth, or related medical conditions. The new EEOC Guidance, however, highlights a few issues of which employers should take particular note. Here are five of 'em:
  1. Not only is it unlawful to discriminate against an employee who is currently pregnant, butdiscrimination based on past pregnancy and a woman's potential to become pregnant also violates the law.
  2. You can't require a pregnant employee who is able to do her job to take leave -- even out of genuine care for the employee or the fetus. More on that here and here.
  3. Lactation is a pregnancy-related medical condition. Duh!
  4. Employers who provide health insurance benefits must also provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions.
  5. Employers must offer light duty to pregnant employees if a light duty position is available.
The guidance also includes, well, guidance, on the interplay between pregnancy and the Americans with Disabilities Act and offers a list of employer best practices. 

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