Baby On Board! Pregnant Employees: What Employers Need to Know

Life literally comes to work when we have an employee who becomes pregnant. Companies need to be prepared with how they will deal with the happy event when an employee announces her pregnancy.

Let’s talk about some of the laws that come into play as we’re dealing with a pregnant worker.

Pregnancy Discrimination Act (PDA) – This law, passed in 1978, requires employers to treat the pregnant employee as they would any other worker. Specifically, the Pregnancy Discrimination Act prohibits discrimination in the:

  • Hiring or the job application and selection process;
  • Pay, job assignments, or promotions;
  • Training, employee benefits, or any other term or condition of employment; and
  • Firing from a job, reduction of hours, layoff, or termination of employment.

The PDA also protects individuals who are not currently pregnant based on their ability or intention to become pregnant. Furthermore, employers may not adopt sex-specific policies restricting women from certain jobs based on childbearing capacity, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer’s concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions. Sex-specific job restrictions can only be justified if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business.

An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Thus, demoting an employee with a good performance record two weeks after she informed her manager that she was trying to become pregnant would constitute evidence of pregnancy discrimination.

PUMP Act – This law revises the ‘lactation for nursing mothers” provision that was contained in the Affordable Care Act in 2010. The law in 2010 specifically excluded exempt employees from being provided a private area in which to take a break and express her milk. The PUMP Act now includes exempt employees. The law requires employers to provide a private space and sufficient break time for a mother to express her milk.

Americans with Disabilities Act & Pregnancy – The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy that qualify as a disability (e.g., gestational diabetes, preeclampsia, etc.). Reasonable accommodations may include such things as remote work, a modified work schedule, temporary assignment to a light duty position, etc.

Pregnant Workers Fairness Act (PWFA) – At the end of 2022, President Biden signed the 2023 omnibus government spending bill, which included the Pregnant Workers Fairness Act. It has been said that the PWFA bridges the gap between the Pregnancy Discrimination Act and the Americans with Disabilities Act.

Under the PWFA, employers will be required to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

“Reasonable accommodation” is defined the same way as under the ADA. There is an expectation that employers will engage in an interactive process with the pregnant employee to determine which accommodations may be reasonable and appropriate for the specific pregnancy-related situation. Additionally, the EEOC has been tasked with issuing examples of what those reasonable accommodations may include.

Family & Medical Leave Act (FMLA) – For employers with more than 50 employees, an eligible, pregnant employee will be entitled to leave under the Act. FMLA can be used for pre-natal visits, morning sickness, and any other general absences that may result from the serious illness of being pregnant. Some companies choose not to count the incidental absences relative to pre-natal visits or occasional morning sickness toward FMLA. However, they can do this…especially if an employee has a more severe form of morning sickness that debilitates them. Anything related to the serious health condition of being pregnant and giving birth and recovery is going to count toward the “medical” part of FMLA and a company can ask for general guidance from a health care provider related to the frequency of absence during the pregnancy stage as well as an anticipated due date and return to work date.

The medical part of FMLA covers the serious health condition of the employee or his/her child, spouse or parent. The Family portion of FMLA covers what may be called “baby bonding time”. It is for the birth of the child or placement of a child for foster or adoption. Presuming your pregnant employee has a normal delivery, they typical “serious health condition” for childbirth and recovery is 6 weeks. The other 6 weeks remaining could be taken by mom for the family part of FMLA or baby bonding time.

State Laws – Many states have laws that require employers to provide leave (in many cases paid) for pregnant employees and/or to family to bond with their child after childbirth, adoption, or foster care placement.

The Job Accommodation Network provides a wealth of resources on accommodating various disabling conditions, including pregnancy. Pregnancy is a normal part of life and those employers that have the necessary processes in place to provide reasonable accommodations, leaves, and nursing mother breaks will be better prepared to manage the situation and have happier employees.

EAF responds to hundreds of hotline calls and emails monthly. We would be happy to answer any interesting questions you may have too! Contacts us at [email protected] or 407.260.6556.

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