In addition, the FMLA allows male and female employees to take protected leave time to bond with a newborn child, but it must be taken within one year of the child’s birth and must be taken as a continuous block of leave, unless the employer agrees to allow intermittent leave (such as, a part-time schedule). The FMLA entitles an eligible employee to take up to 12 work weeks of job protected unpaid leave for the employee’s serious health condition, the birth of a child, to bond with a newborn or to care for a child with a serious health condition. In some ways, the FMLA is the broadest but easiest law with which to comply in a pregnancy situation. While the ultimate outcome is still uncertain, employers should consider revising their light duty policies to include pregnant individuals. UPS where the employer won in the lower courts, but the matter was remanded on March 25 with the majority opinion at least hinting that it might favor an outcome for the plaintiff, though the Court specifically did not adopt the legal rationale of either the plaintiff, employer or EEOC. The EEOC takes the position that such a policy results in unlawful pregnancy discrimination.
However, some employers have historically followed a policy of only making light duty positions available to employees who have been injured on the job. The EEOC even admits that if an employer does not provide light duty for anyone it does not have to do so for pregnant workers.
Under those rules, the employer may lawfully apply the same limitations to pregnant employees as it applies to non-pregnant employees. The EEOC allows certain limitations on the light duty, including the number of light duty positions or how long an employee can be on light duty. While creating a light duty position is not recommended, some employers still do this, and the EEOC expects pregnant employees with light duty excuses to be treated the same as other workers. The EEOC acknowledges that the PDA requires only that an employer treat pregnant employees the same as it treats workers who are not pregnant, but who are similar in their ability or inability to work. Obviously, the smaller the employer organization, usually the greater burden it is to comply with the pregnant employee’s requests. This is likely amplified by the fact that most pregnancy situations are of relatively short duration, and as in many other employee health issues, the employee often will be able to find a doctor who will agree with their requested accommodations, such as time off from work. However, the interplay between the statutes, regulations and EEOC guidance is complex and likely leads many employers to providing preferential treatment to pregnant workers merely to simplify matters and avoid legal entanglements. And, technically that might be correct under the terms of the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
The Equal Opportunity Employment Commission (EEOC) would say it does not expect preferential treatment for pregnant employees. Examples of pregnancy-related impairments employers should consider and some common ADA accommodation requestsĭoes the EEOC expect preferential treatment for pregnant employees?
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