Do you have the right to have your pregnancy accommodated at work? What steps, if any, does your employer have to take to help you perform your job during your pregnancy? Are you able to take time off from work due to your pregnancy? The good news is that you do have rights under federal and many state laws. Depending on your situation, your employer may have to accommodate you when your pregnancy affects your ability to do your job.
Under the Pregnancy Disability Act (PDA), employers with 15 or more employees may not discriminate against pregnant employees with regard to any benefit of employment, including disability leave, health insurance, hiring, firing, layoff, pay, training, promotions, and job assignments. In short, employers must extend the same rights and benefits to pregnant employees as they do to other similarly situated employees.
Depending on how your employer treats non-pregnant employees with temporary disabilities, you may be entitled to accommodation for your pregnancy. While the PDA doesn’t specifically require employers to accommodate pregnant employees, it does require employers to treat pregnant employees the same as non-pregnant employees who are temporarily disabled for other reasons. For example, if your employer offers light duty work to all employees who need light-duty work for other reasons, you are entitled to the same treatment.
The law is less clear when it comes to an employer offering light-duty work to some, but not all, employees who are temporarily disabled for other reasons. The United States Supreme Court recently provided guidance on this issue. In Young v. UPS, a pregnant employee sued UPS after she was denied light-duty work. UPS provided light-duty work to some employees, including those who were injured on the job. But it didn’t provide light duty to other employees, including pregnant employees and employees injured off the job.
The Supreme Court held that employers are not required to accommodate pregnant employees any time they accommodate a subset of non-pregnant employees. However, employers must be able to show a legitimate, nondiscriminatory reason for the different treatment. If the employer doesn’t have a sufficiently strong reason for treating pregnant employees differently, that may be evidence of pretext for discrimination. (To learn more, see Supreme Court Clarifies Employer’s Duty to Accommodate Pregnant Employees.)
Employers with 15 or more employees are covered by the Americans with Disabilities Act (“ADA”). Under the ADA, employees who suffer from pregnancy-related disabilities, such as preeclampsia or diabetes, are entitled to reasonable accommodation from their employers. A disability is a mental or physical impairment that substantially limits a major life activity, such as standing, lifting, walking, sleeping, or breathing. It should be noted that pregnancy itself is not considered a disability under the ADA. As a result, pregnant employees without disabilities are not entitled to reasonable accommodation under the ADA. (They may, however be entitled to accommodation under the PDA, as discussed above, or under state law, as discussed below.)
In general, reasonable accommodation means changes or modifications to the employee’s schedule, duties, or workspace to help her perform the essential functions of the job. Examples of reasonable accommodations may include ergonomic office furniture, modification of work hours, restriction on lifting, leaves of absence, and even transfer to a less demanding position. An employer is not required to take measures that would create an “undue burden”: changes that are too costly or difficult to make when considering the employer’s size and resources.
A pregnant employee may just need a couple of hours off here and there to attend doctors’ appointments. This sort of “intermittent leave” is also available to eligible employees under the FMLA (see below for more details). In other situations, the pregnant employee may need a different accommodation by her employer so that she can continue to work while pregnant. For example, a register clerk may need a stool because she has a pregnancy-related disability that affects her ability to stand for long periods of time. The ADA requires a covered employer to offer such accommodation so long as it is not an undue burden to do so.
An employee with a disabling, pregnancy-related condition must notify her employer of the need for reasonable accommodation. The employer then must engage in an “interactive process” with the employee to discuss what specific accommodation she needs and how the employer may provide it. The employer is entitled to ask for certification from the employee’s medical care provider supporting the need for accommodation. (See our article on FMLA Certifications for more details.)
An employee with a pregnancy-related disability under the ADA may also qualify for FMLA leave. If the both the ADA and the FMLA apply to the employee, the employee may be entitled to a full 12-weeks of FMLA leave and additional time off as a reasonable accommodation under the ADA. In that case, the first 12 weeks of the employee’s leave would be considered FMLA leave (thus reducing the employee’s available FMLA leave time), while the remainder would be considered ADA disability leave.
The Family Medical Leave Act (FMLA) requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees who are unable to work due to pregnancy or need time off for medical treatment. For example, an employee who suffers severe morning sickness for the first few weeks of her pregnancy may be entitled to time off from work. (See our article on taking FMLA leave for more information on eligibility.)
The FMLA also provides that a pregnant employee may use her 12-week entitlement to take time off as-needed for medical treatment related to her pregnancy. Thus, an employer must allow a pregnant employee to take time off to attend regular prenatal appointments with her doctor.
Many states have their own pregnancy disability and/or family and medical leave laws that may extend greater protections to pregnant employees. Some state laws give additional rights, such as the right to light duty or more time off from work, while others cover smaller employers than the federal laws.
As is the case with the federal laws discussed above, the leave rights and other protections available under state laws may interact or overlap with federal laws. If you’re pregnant and need time off from work or a reasonable accommodation, it’s a good idea to talk to an employment lawyer to find out the full extent of your rights under federal, state, and local law.