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The Resource Newsletter for Home and Hospice Care
September 2014
Home Care
The Law
LEGAL HOT TOPIC:
Pregnant Employees Given More Rights Under The Equal
Employment Opportunity Commission’s New Guidance
By Eileen Maguire, The Gilliland Law Firm PC
This issue’s legal hot topic focuses on the recent guidelines issued
from the Equal Employment Opportunity Commission concerning its
enforcement interpretation of the Pregnancy Discrimination Act of
1978. Dramatic changes have been issued. Find out what changes will
affect your agency or hospice and learn how to prepare your work place.
Published by Indiana Association for Home and Hospice Care, Inc.
6320-G Rucker Road
Indianapolis, IN 46220
www.iahhc.org | (317) 775-6675
LEGAL HOT TOPIC/ Eileen Maguire
Pregnant Employees
Given More Rights Under
The Equal Employment
Opportunity Commission’s
New Guidance
If you have 15 or more employees, you are subject to the
Pregnancy Discrimination Act of 1978. The EEOC has
issued new guidelines that ultimately could affect your work
place.
T
he Equal Employment Opportunity Commission (EEOC) has issued
dramatic changes to its enforcement interpretation of the Pregnancy
Discrimination Act of 1978 (the “PDA”) with respect to how agencies
and hospices must respond to, and treat, applicants and employees who are
pregnant or have pregnancy-related conditions. These changes are found in
the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related
Issues (the “Guidance”), released July 14, 2014 and available at http://www.
eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
The most controversial change is the EEOC’s requirement that you must now
assess whether to offer reasonable accommodations to employees who may be
temporarily impaired by pregnancy-related conditions. The EEOC explains its
new accommodation requirement by saying employers must treat pregnant
employees the same as those employees with disabilities who can work with or
without reasonable accommodations. It further broadens its interpretation of
what constitutes a “disability” for purposes of complying with the PDA.
This Article will review the parts of the Guidance that have the most impact
for your organization’s employment policies and practices.
What is a “Pregnancy”?
The EEOC’s new Guidance has broadened the definition of “pregnancy
and pregnancy-related conditions” to encompass every aspect of the
reproductive process, including conception and decisions not to conceive (i.e.,
contraceptives), pregnancy or termination of pregnancy, childbirth, and post| Page 2
birth needs, including lactation and nursing.
The Guidance’s definition further encompasses
every aspect of employment, including hiring, firing,
promotion, health insurance benefits and treatment
in comparison with non-pregnant persons similar
in their ability or inability to work, such as disabled
employees who have reasonable accommodations.
The EEOC justifies its broadened definition, in part,
because employers are now subject to a number
of new laws that were enacted after 1978 (when
the PDA was enacted), such as the American with
Disabilities Act, and the ADA Amendments Act of
2008 (the “ADA”), the Family and Medical Leave Act
(the “FMLA”) and the Affordable Care Act (the “ACA”).
Caregiver duties to children are not pregnancy-related conditions under
the PDA; however, the EEOC reminds employers that they cannot make an
adverse employment decision under Title VII based on assumptions that
women with children will not be reliable employees. Also, the ADA prohibits
employers from making adverse employment decisions against an employee
who cares for a disabled child.
Does Pregnancy Require Job Accomodation?
Before the release of this new Guidance, courts have traditionally understood
the PDA to prohibit discrimination on the basis of pregnancy without requiring
accommodation for the pregnancy. Even the ADA does not require employers
to make accommodations for a normal pregnancy because a normal pregnancy
is not a “disability.” Morning sickness, swollen feet and sore backs are normal
for pregnancy and would not require accommodations under the ADA.
The EEOC does not dispute the ADA’s position stated above; rather, it argues
for accommodations under an “equal treatment” analysis. Because your
agency or hospice offers accommodations for employees with disabilities (which
you must under the ADA), you should also be required to offer accommodations
to employees who have pregnancy-related impairments. This means that
an EEOC investigation will now compare your organization’s treatment of
employees with disabilities against your treatment of pregnant employees.
Earlier cases under the PDA did not allow such comparison.
In a Questions and Answers paper that accompanies the Guidance, the EEOC
said:
“The term disability should be construed broadly, and the determination
of whether someone has a disability should not demand extensive
analysis… Examples of pregnancy-related impairments that may
substantially limit the major life activities include pelvic inflammation,
which may substantially limit the ability to walk, or pregnancy-related
carpal tunnel syndrome affecting the ability to lift or to perform manual
tasks.”
Therefore, under the Guidance, a pregnant worker’s morning sickness, back
pains, changes in body size and balance may require accommodations. The
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The EEOC’s new Guidance
has broadened the
definition of “pregnancy
and pregnancy-related
conditions” to encompass
every aspect of the
reproductive process.
double-edge sword to this proposition is that an employer cannot initiate the
accommodation without the employee’s request for the accommodation first.
In other words, an employer cannot assume a pregnant employee will not be
able to perform her job as usual because the employer perceives the job as
being too dangerous for her pregnancy.
The EEOC clearly states in its Guidance that you do not have to treat
pregnant employees different from other non-pregnant employees requesting
job accommodations. For example, if you require all employees requesting
accommodations to submit a doctor’s assessment of their work-related
limitation or impairment, you should require that of pregnant employees who
desire accommodations, as well.
Under its Best Practices notations in the Guidance, the EEOC provides that
individuals requesting reasonable accommodations, including employees with
pregnancy-related impairments:
“[…] should not be required to submit more than reasonable
documentation to establish that they have covered disabilities.
Reasonable documentation means that the employer may require
only the documentation needed to establish that a person has an
ADA disability, and that the disability necessitates a reasonable
accommodation. The focus of the process for determining an appropriate
accommodation should be on an employee’s work-related limitations and
whether an accommodation could be provided, absent undue hardship, to
assist the employee.”
If the pregnant employee provides satisfactory documentation concerning her
work-related impairment, then your organization can only deny the request
or need for an accommodation if the accommodation would create an undue
hardship on your agency, which the Guidance further defines as requiring
“significant difficulty or expense.”
As stated earlier, reasonable accommodation for a normal pregnancy is not
required under the ADA. However, since 2008, the
ADA has broadened its definition of “disabilities”
to include certain complications from pregnancy.
For example, preeclampsia (high blood pressure
associated with pregnancy, which usually goes away
after the birth) or gestational diabetes (diabetes
during pregnancy only) may qualify as “disabilities”
under the ADA. If so, then employees with these
pregnancy-related medical conditions would be
entitled to reasonable accommodations under the
ADA.
Reasonable
accommodation for a
normal pregnancy is not
required under the ADA.
However, since 2008, the
ADA has broadened its
definition of “disabilities”
to include certain
complications from
pregnancy.
The issue of whether accommodations is required
by the PDA is pending before the United States
Supreme Court in Young v. United Parcel Service
(“UPS”), Inc., which will likely be heard this
Fall. IAHHC and our law firm will inform you
of the outcome of this case, but keep in mind the
following: discrimination charges under the PDA
are on the rise (up approximately 37% between
1997 and 2013), and other states and municipalities
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have already enacted pregnancy “accommodation”
laws (e.g., Illinois) precisely because the PDA
does not require accommodations. Requiring
accommodations for pregnancy-related impairments
may become law eventually, even if the Supreme
Court rules accommodation is not required under
the PDA.
What are Reasonable
Accomodations for Pregnant
Employees?
The EEOC provides examples of what it feels are
reasonable accommodations for someone with a pregnancy-related impairment
in its Questions and Answers paper. These include:
• Redistributing marginal or nonessential functions (for example,
occasional 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;
• 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; and
• Temporarily reassigning an employee to a light duty position.
These examples are not particularly helpful for organizations that manage
field employees in clients’/patients’ homes. For example, how would you
accommodate a pregnant employee with a lifting restriction who is the only
one scheduled to handle the hoyer lift or the only one scheduled to transfer the
patient in and out of a wheel chair as needed? You may consider modifying
that employee’s shift changes to overlap with her lifting duties so that another
employee may assist or perform that job function. Or, perhaps you could
reassign that employee to a client/patient who does not require lifting duties.
Whether your organization can reasonably accommodate pregnant field staff
with work limitations will be a fact-sensitive inquiry involving, in part, an
analysis of your organization’s financial and staffing resources.
Light Duty
Agencies and hospices that offer “light duty” only to employees recovering from
work-related injuries or illnesses will now need to offer light duty to pregnant
employees who request accommodation, according to the EEOC. The EEOC’s
enforcement position with respect to light duty for worker injury only is
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Organizations that manage
field employees in clients’/
patients’ homes face
unique challenges. For
example, how would you
accommodate a pregnant
employee with a lifting
restriction who is the only
one scheduled to handle
the hoyer lift or the only one
scheduled to transfer the
patient in and out of a wheel
chair as needed?
contrary to current case law. (This issue is also part of the Young v. UPS case
to be argued before the US Supreme Court this fall.)
Agencies and hospices that do not offer any light-duty jobs for any reason
may still need to consider offering light duty to a pregnant employee as a
reasonable accommodation if they cannot demonstrate that the neutral ban
on all light duty work is job-related and consistent with business necessity.
Even neutral policies will be scrutinized as to whether they negatively impact
pregnant employees.
Light duty policies that have certain restrictions, such as only offering a
limited number of positions at one time or limiting the duration of a light duty
assignment, may be lawful if they are applied equally to pregnant workers
and other workers similar in their ability or inability to work. This assumes
that the light duty restrictions are job-related and consisted with business
necessity.
Medical and Sick Leave
Agencies and hospices must allow employees with physical conditions related
to pregnancy (remember, this is a broad definition now) to take leave on
the same terms and conditions as others who are similar in their ability or
inability to work. Similar to neutral light duty policies, the EEOC warns that
neutral sick leave policies that restrict leaves to only 10 days, for example,
may now be viewed as disparately and negatively impacting pregnant
employees as opposed to male employees.
Pregnant employees out on medical leave should also be entitled to continue
to accrue seniority and other benefits the same as those who are on leave for
reasons unrelated to pregnancy.
The EEOC warns that
neutral sick leave
policies that restrict
leaves to only 10 days,
for example, may now
be viewed as disparately
and negatively impacting
pregnant employees
as opposed to male
employees.
Health Care Benefits and Nursing
Mothers’ Policies
The Affordable Care Act (“ACA”) requires Agencies
to provide coverage for a number of FDA-approved
contraceptive devices. Assuming your organization
does not qualify for the family-owned “Hobby
Lobby” religious exception (which can be found in
the US Supreme Court case that ruled in favor of
Hobby Lobby in June 2014), the EEOC’s position
is that failure to provide contraceptives is not only
a violation of the ACA, but also a violation of the
PDA.
The same applies to an agency’s or hospice’s
failure to comply with nursing mothers’ break
requirements under the ACA, the federal Fair
Labor Standards Act and other similar Indiana
laws. In other words, the Guidance suggests that
you may be scrutinized by the EEOC for failing to
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meet the nursing mother’s break requirements under a myriad of other laws in
addition to the PDA.
Practical Impact for Your Agency
If you have 15 or more employees, you are subject to the PDA. While it is
important to remember that the EEOC’s new Guidance is not “law,” the
Guidance does tell you how the EEOC intends to interpret the PDA if your
organization is charged with discrimination. If the EEOC finds that you have
violated the PDA, you will have to either abide by its corrective requirements
or appeal the determination through the Courts – which, of course, is a costly
endeavor. (Under the PDA, employees and applicants have always had the
right to sue their employers in a private lawsuit after bringing their charges to
the EEOC.)
Moreover, it seems clear that the EEOC intends to raise potential violations
under other laws, such as the ADA, the ACA and the like, in its PDA
investigations. If the US Supreme Court rules that accommodations are
required under the PDA this fall, you will likely start to see a lot of PDA/ADA
cross-over charges and cases.
It is difficult to determine at this time whether the US Supreme Court and
other lower courts will support the EEOC’s aggressive interpretations of the
PDA’s scope in its Guidance. Notably, the EEOC Commissioner Constance
Barker and another commissioner opposed the Guidance’s interpretation
that accommodations were required by the PDA. (Obviously, their opposition
did not persuade the majority of the EEOC Commissioners who issued the
Guidance.)
In the meantime, you should check your written policies implicated by the
Guidance for any blatant negative impacts on applicants and employees who
may be pregnant or have a pregnancy-related condition.
Perhaps more importantly, you should train your supervisors and managers
to recognize the nuances of pregnancy-related disabilities and all of the other
rights now given to applicants and employees who are pregnant or have
pregnancy-related conditions under the Guidance. Well-trained supervisors
and managers (and well-written policies) are essential for avoiding and
defending against discrimination charges.
Eileen Maguire is Of Counsel to The Gilliland Law Firm P.C. in
Indianapolis, Indiana. She can be reached at (317) 704-2400 or
emaguire@gillilandlawfirm.com.
This article represents the author’s views and not necessarily those of IAHHC, is for educational and informational
purposes only, is not intended to be legal advice, and should not be used for legal guidance or to resolve specific legal
problems. In all cases, agencies should seek legal advice applicable to their own specific circumstances. © 2014 The Gilliland
Law Firm PC. Members are encouraged to submit legal topics for future issues to the Indiana Association for Home and
Hospice Care, Inc.; 6320-G Rucker Road, Indianapolis, IN 46220.
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&
Home Care
The Law
Published by the Indiana
Association for Home &
Hospice Care, Inc.
&
Home Care
The Law
Published by Indiana Association for
Home and Hospice Care, Inc.
6320-G Rucker Road
Indianapolis, IN 46220
www.iahhc.org | (317) 775-6675
Pregnant Employees Given More Rights Under The Equal
Employment Opportunity Commission’s New Guidance
If you have 15 or more employees, you are subject to the Pregnancy
Discrimination Act of 1978. The EEOC has issued new guidelines that
ultimately could affect your work place.
| Page 8