Apparently unwilling to wait for a Supreme Court decision on the issue next term, and reasoning in direct conflict with prior federal courts of appeals decisions, the Equal Employment Opportunity Commission has issued guidance for employers with regards to pregnant employees..
The Pregnancy Discrimination Act (PDA) was passed in 1978 as modification to the Civil Rights Act. It prohibits discrimination on the basis of pregnancy. The Americans with Disabilities Act (ADA) was passed in 1990 and significantly amended in 2008. This Act established the employer requirement of “reasonable accommodation” of employees determined as disabled. The new provisions explain when the PDA and ADA might require reasonable accommodations for workers with pregnancy-related disabilities or work restrictions.
Here is an excerpt from the guidance with examples of the accommodations a pregnant worker with disabilities might need:
- 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
The most troubling, and common-sense defying, element in the guidance is the expectation that employers adopt (in the words of dissenting EEOC Commissioner Lipnic) a “code of silence” with respect to pregnancy. The most common practice today is for the employer and pregnant employee to hold a series of conversations after the pregnancy is disclosed so that plans can be made and expectations set well in advance. The EEOC apparently takes a dim view of this very human and compassionate practice in the workplace, preferring instead ‘don’t ask; don’t tell.”