WHAT TO EXPECT FROM YOUR EXPECTING WORKER: NEW EEOC PREGNANCY DISCRIMINATION UPDATE

Sorting out her maternity leaveThe Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance on pregnancy discrimination in mid-July 2014. This guidance recognized the increase in pregnancy discrimination claims (from 3,900 charges in 1997 to 5,342 in 2013) and expressly incorporated pregnancy discrimination as a form of sex discrimination. The guideline also linked pregnancy discrimination to the American’s with Disabilities Act (“ADA”), after a broader definition of “disability” was added in the 2008 ADA amendment. EEOC considers pregnancy discrimination as its national enforcement priority and this new guideline can have significant implications for EEOC investigations and litigation. In addition, the Supreme Court granted cert to a pregnancy discrimination case concerning light duty for pregnant employees in July and will issue their opinion on the matter by July of 2015. This decision could render the guidance moot. This leaves a quandary for employers about whether to update their policies now or wait for the Supreme Court decision.

Does this law apply to me?

If you have 15 or more employees, the federal Pregnancy Discrimination Act (“PDA”) applies to you. As the Nevada law is less stringent than the federal law, the PDA will set the minimum requirements concerning treatment of pregnant employees. The PDA prohibits all forms of discrimination relating to pregnancy (including past, current, potential, and intended pregnancies and related medical conditions) in all stages of employment.

What do I need to do?

A good starting point is to treat your pregnant employee either as an employee that is temporarily incapacitated or as a disabled employee if she faces any medical impairment relating to her pregnancies (which trigger ADA regulations). In addition, consider the following checklist…

Hiring

  • When hiring, create a detailed job description with the physical requirements of the position. Be sure to include all essential functions of the position.
  • Do not ask any questions or make any comments related to a potential employee’s pregnancy. You may ask if the person believes that she will be able to satisfy all essential functions of the position.
  • Do not refer to any stereotypes associated with pregnancy during the interview or after.

Demotion and Raises

  • You may not discriminate based on pregnancy at any point in employment. Document all performance evaluations and employment decisions with detailed explanations just in case you must justify the termination in a court of law.

Terminations

  • It is illegal to discriminate against past, current, or potential pregnancies. Termination of an employee during a pregnancy or in a period after can be used as evidence for pregnancy discrimination suits. Be aware of your heightened litigation exposure if you terminate during this period.

Benefits

  • Review your insurance policy to be sure pregnant employees receive the same type of insurance care as other employees. The same type of insurance does not mean that you must offer all pregnancy related treatments. For example, you may exclude infertility treatments and abortions (if the life of the mother is not in danger).
  • NOTE: The guidance indicates that you must provide contraceptives if you provide health care of a similar type, such as preventative care. This directive may be modified after the Supreme Court’s decision in Burwell v. Hobby Lobby.
  • Be sure that you calculate vacation accrual and seniority for pregnant and other employees in the same manner. If vacation and seniority accrues during sick, injury, and other types of leave, it should also accrue during pregnancy related leave.

Policies

  • You MAY NOT force your employee to take her leave when she is pregnant even if you are doing so in her best interest. If her position involves an environment or tasks that could be hazardous to the fetus, you may inform your employee of the danger.
  • This is good time to review your leave compliance policy in general to ensure you are in compliance with other laws such as the Family Medical Leave Act (“FMLA”) if it applies to you.
  • Review your parental leave policy (leave for child bonding purposes), to ensure that mothers and fathers are governed by the same policy.
  • Install or incorporate a discrimination complaint procedure in your workplace. Be sure to include strong anti-harassment and anti-retaliation provisions and enforce them.
  • Review your policy for granting light duty. If you provide light duty for those sick or injured on the job you should also provide light duty to accommodate pregnant employees. This does NOT mean that you must always give light duty when it unduly burdens your company. It does mean that if you make exceptions in your light duty capacity for injured workers, you must consider similar exceptions for pregnant workers.
  • Review all policies to ensure that it does not disproportionately affect your pregnant employees.

 

 

Notice and Training

  • Update your supervisors and employees about their rights and responsibilities under PDA.
  • Train your managers to sensitively respond to requests and complaints related to pregnant workers.
  • As required by the Affordable Care Act, designate a private space for breastfeeding and give your employees a reasonable number of break times to use the facility. Notify your employee of her right to use the facility.

Reasonable Accommodation

If your employee experience pregnancy related medical impairments, they may be under the protection of the ADA. You must make additional reasonable accommodations in these situations.

  • Incorporate pregnancy related medical conditions into your preexisting reasonable accommodation request policy and procedures and notify your employees of the change.
  • Ensure your managers are aware of the broader definition of disability and train them to recognize pregnancy related medical conditions that would trigger the ADA.
  • Consider appropriate reasonable accommodations such as: redistributing marginal functions, altering how tasks are completed, modifying policies, purchasing equipment, modifying the work schedule, granting leave, assigning temporary light duty, etc.            Contact Drinkwater Law Offices before you act if you are uncertain about the legal ramifications.