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EEOC Guidance: PDA and ADA Require Accommodations
 

By Allen Smith  7/14/2014

In its first major update of Equal Employment Opportunity Commission (EEOC) guidance on pregnancy discrimination since 1983, the agency on July 14, 2014, added provisions explaining when the Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) might require reasonable accommodations for workers with pregnancy-related disabilities or work restrictions.

Commissioner Victoria Lipnic voted against the newly revised guidance, saying it “takes the novel position that under the language of the PDA, a pregnant worker is, as a practical matter, entitled to ‘reasonable accommodation’ as that term is defined by the ADA. No federal court of appeals has adopted this position; indeed, those which have addressed the question have rejected it.”

She noted the Supreme Court next term will decide to what extent a pregnant employee must be reasonably accommodated and called the timing of the revised guidance poor, given that the Supreme Court’s decision might moot it.

Many of the ideas in the revised guidance shed light on the commission’s thoughts about what constitutes reasonable accommodation under the ADA and could be instituted without undue hardship.

While Lipnic did not buy the argument that the ADA Amendments Act, effective in 2009, expanded the “disability” definition to encompass many pregnancy-related impairments, the extent to which it expanded the reach of “disability” to include pregnancy-related impairments is one that will be litigated in the courts for years to come.

Regardless, under the current guidance, Scott Fanning, an attorney with Fisher & Phillips in Chicago, said employers should be “cautious with pregnant employees. Treat them as you would anyone else.” He noted that under the guidance in terms of accommodations, pregnant employees with disabilities (which arguably might even include morning sickness or high blood pressure) have the same accommodation rights that any other individuals with disabilities would have.

That said, he noted that while some courts will follow the guidance, no court must.

Reasonable Accommodations

The guidance did not seem to anticipate the “public controversy” Lipnic thought it is likely to engender.

Instead, it listed reasonable accommodations a pregnant worker with disabilities might need, such as:

  • Redistributing marginal or nonessential functions (such as lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed.
  • Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited.
  • Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time.
  • Allowing a pregnant worker placed on bed rest to telework where feasible.
  • Granting leave in addition to what an employer would normally provide under a sick leave policy.
  • Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing.
  • Temporarily reassigning an employee to a light-duty position.

Best Practices

In addition, the guidance listed best practices in providing reasonable accommodations for pregnant workers, such as:

  • Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.
  • State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
  • Make any written reasonable accommodation procedures an employer may have widely available to all employees, and periodically remind them that the employer will reasonably accommodate employees with disabilities who need them, absent undue hardship.
  • Train managers to recognize requests for reasonable accommodations, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.
  • Make sure that anyone designated to handle requests for reasonable accommodations knows that the definition of the term “disability” is broad and that employees requesting accommodations, including employees with pregnancy-related impairments, should not be required to submit more than reasonable  documentation to establish that they have covered disabilities.
  • If a particular accommodation requested by an employee cannot be provided, explain why and offer to discuss the possibility of providing an alternative accommodation.

Pregnancy-Related Discussions

Lipnic also took issue with what she described as “the tone the guidance takes with respect to pregnancy-related inquiries or discussion in the workplace, which I fear will have the counterproductive result of making workplace accommodation of routine pregnancies more complicated for employers, and—far more troubling to me—less accessible and available to pregnant workers."

Lipnic noted that “the guidance references comments or discussion of pregnancy, or its impact on a pregnant worker’s ability to perform her duties, as evidence of discrimination.

“I am deeply concerned that the effect of the pregnancy guidance will be to cause employers to not do exactly what should be done where an employee informs her employer that she is pregnant. It is my view that when a supervisor or manager learns of an employee’s pregnancy, it is entirely appropriate to begin a conversation with the employee about her anticipated plans, schedule, workload and assignments, so as to develop a plan to address the employee’s needs and schedule, while ensuring that necessary work is completed, transitioned or shifted as appropriate, and the like,” she added.

“Suggesting, as the guidance essentially does, that employers adopt a ‘code of silence’ with respect to pregnancy is not appropriate or realistic, and in my view works a disservice to both the company and the pregnant worker.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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