Chicago Auto Trade Association - Don't Do These 4 Things to Avoid a Pregnancy Discrimination Charge

Don't Do These 4 Things to Avoid a Pregnancy Discrimination Charge

Monday, October 28, 2024 9:44 AM | Anonymous member (Administrator)

The U.S. Equal Employment Opportunity Commission has started to sue employers who it claims are not complying with the reasonable accommodation requirements of the Pregnant Workers Fairness Act (PWFA). In light of the flurry of EEOC litigation, employers should be mindful of 4 things they should not do.

Don’t just follow your old ADA procedures in pregnancy accommodation cases. At most, all you can request is (1) confirmation of the pregnancy, and (2) recommended accommodations that would be helpful under the circumstances. Also, there is an entire class of what the EEOC calls “predictable assessment” accommodations that generally have to be granted with no consultation with a health care provider (assuming the pregnancy has been confirmed). These are (1) allowing the employee to carry or keep drinking water nearby, (2) allowing the employee to take extra bathroom breaks, (3) allowing the employee to sit (if in a standing job) or to stand (if in a sitting job), and (4) allowing the employee to take extra breaks for eating or drinking.
Don’t require a pregnant employee to take a leave of absence instead of accommodating her on the job. Requiring a leave of absence is generally going to violate the PWFA. The only exceptions are (1) when you’ve engaged in the interactive process with the employee before requiring the leave, or (2) when the employee herself prefers to take a leave.
Don’t think that your pregnancy accommodation obligation will not start before pregnancy or be over immediately after birth. In addition to the gestational period, employers also have to be willing to consider accommodations, if requested, for: the period during which the employee is trying to get pregnant; the period of maternity leave an employee needs for their own medical condition; accommodations after the new mom returns to work, including but not limited to lactation accommodations; time off for miscarriages, stillbirths, or abortions.
Don’t let the FMLA control all decisions. The Family and Medical Leave Act (FMLA) requires covered employers to give employees unpaid leave of up to 12 weeks under certain circumstances. Prenatal care and maternity leave are among the many qualifying reasons for FMLA leave. Unfortunately, a lot of employers who are covered by the FMLA think that are ok as long as they have (1) complied with their FMLA obligations, or (2) determined that the FMLA doesn’t apply (for example, because the employee isn’t eligible yet). This has been a longstanding trap for employers in disability cases. It’s not unusual for an employer to focus exclusively on the FMLA and fail to consider disability-related reasonable accommodations under the ADA or other applicable disability rights laws. For example, an employer may terminate an employee who needs time off for cancer treatment because the employee hasn’t hit the full 12 months required for FMLA eligibility. Denying FMLA leave to an employee who is not eligible for FMLA leave doesn't violate the FMLA, but failure to grant the leave as a disability accommodation would violate the ADA.

For more information, contact SESCO by 1-800-764-4127; sesco@sescomgt.com or via your Consultant of Record, Ms. Jamie M. Hasty, Vice President, jamie@sescomgt.com or 804-931-6281

Chicago Automobile Trade Association
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