CDC’s Plea to Vaccinate Pregnant Women Doesn’t Eliminate Need for Accommodation

Allen Smith, J.D. By Allen Smith, J.D. October 1, 2021
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a pregnant patient with a medical professional

​On Sept. 28, the U.S. Centers for Disease Control and Prevention (CDC) issued "urgent action" to increase COVID-19 vaccination among women who are pregnant, recently were pregnant or who might become pregnant. Nonetheless, employers still should give careful consideration to pregnant employees' requests to be excused from vaccine mandates. We've gathered articles on the news from SHRM Online and other outlets.

Low Vaccination Rate Among the Pregnant

As of Sept. 18, 31 percent of pregnant women were fully vaccinated before or during their pregnancy. As of Sept. 27, more than 125,000 COVID-19 cases have been reported in pregnant women, including more than 22,000 hospitalizations and 161 deaths. The highest number of COVID-19-related deaths in pregnant women—22—happened in August. Pregnant women with COVID-19 are at increased risk of pregnancy complications with some data suggesting a greater risk for preterm birth, stillbirths and admission into intensive care of a newborn infected with the coronavirus.

(CDC) and (NPR)

Accommodate Pregnant Workers?

So are companies free to reject any request for a pregnancy-related exemption from a vaccination mandate? No. Businesses that mandate vaccinations should know how to interact with pregnant employees who seek a vaccination accommodation. A company should decline a pregnant employee's vaccination accommodation request that is based only on her word unless it has already excused other employees similar in their ability or inability to work, said Eric Meyer, an attorney with FisherBroyles in Philadelphia. It's no different than if someone without an apparent disability sought a disability-related vaccination accommodation without any supporting medical documentation, he explained. However, if a pregnant employee supports her accommodation request with a valid doctor's note, especially if she has a pregnancy-related disability, attention should shift to the accommodation.

(The Employer Handbook)

ADA and States Mandate Accommodations

The Americans with Disabilities Act requires reasonably accommodating qualified individuals with disabilities, including those disabilities related to pregnancy. At least 31 states and the District of Columbia have passed bills similar to the Pregnant Workers Fairness Act (PWFA), which would require employers to reasonably accommodate workers and job applicants who need accommodations due to pregnancy, childbirth and related medical conditions. The House of Representatives passed the PWFA earlier this year, sending it to the Senate. A Supreme Court decision, Young v. UPS, created an obligation for employers that accommodate employees with disabilities or who provide light duty to employees to make reasonable accommodations for pregnancy and related conditions, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

(SHRM Online)

Vaccines Don't Increase Risk of Miscarriage

Studies have shown that the COVID-19 vaccines do not increase the risk of a miscarriage. Both the Pfizer-BioNTech and Moderna vaccines produce robust immune responses in pregnant women and do not damage the placenta, researchers have found.

(The New York Times)

Vaccinated Pregnant Women Pass Antibodies to Babies

Pregnant women who get an mRNA vaccine against COVID-19 pass high levels of protective antibodies on to their babies, according to new research. In the study, 36 babies had high levels of antibodies that target the spike protein on the surface of the virus and the antibodies could be traced to the mother's vaccinations.

(Reuters)

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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