For the first time since 1983, the Equal Employment Opportunity Commission (EEOC) has issued comprehensive guidance on how employers must treat pregnant employees and applicants. The controversial guidance was passed by the EEOC commissioners on a vote of 3-2, with two of the commissioners indicating that the guidance went beyond applicable legal precedents. The guidance, dated July 14, 2014, is accompanied by a "Q&A" document and a Fact Sheet for Small Businesses, a summary of which appears below.

This document explains the requirements of the Pregnancy Discrimination Act (PDA), as well as the requirements of the Americans with Disabilities Act (ADA) as it applies to women with pregnancy-related disabilities.

  • Basic PDA Requirements - The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work.
  • Current Pregnancy. Under the PDA, an employer cannot take any adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. This is true even if the employer believes it is acting in the employee's best interest.
  • Past Pregnancy. An employer may not discriminate against an employee or applicant based on a past pregnancy or pregnancy-related medical condition or childbirth.
  • Potential Pregnancy. An employer may not discriminate based on an employee's intention or potential to become pregnant.
  • Medical Condition Related to Pregnancy or Childbirth. An employer may not discriminate against an employee because of a medical condition related to pregnancy and must treat the employee the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.

Harassment - It is unlawful to harass a woman because of pregnancy, childbirth, or a related medical condition. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive environment, or when it results in an adverse employment decision.

Workers with Caregiving Responsibilities - Discrimination against a worker with caregiving responsibilities violates Title VII if it is based on sex, and violates the ADA if it is based on a family member's disability. For example, an employer violates Title VII by treating a female employee with young children less favorably than a male employee with young children when deciding on work opportunities, based on a belief that the mother should focus more on the children than on her career. In addition, an employer violates the ADA where it takes an adverse action, such as refusing to hire or denying promotion, against a mother of a newborn with a disability over concerns that she would take off a lot of time for the child's care or that the child's medical condition would impose high health care costs.

Benefits of Employment - An employer must provide the same benefits of employment to women affected by pregnancy, childbirth, or related medical conditions that it provides to other persons who are similar in their ability or inability to work.

  • Light Duty Policies. An employer has to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work.
  • An employer may not limit a pregnant worker's access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).
  • However, if an employer's light duty policy restricts the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.
  • Leave. While an employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions (e.g., provide them with the same amount of leave) as others who are similar in their ability or inability to work.

 An employer:

  • may not single out an employee's pregnancy-related condition for medical clearance procedures that are not required of employees who are similar in their ability or inability to work,
  • may not remove a pregnant employee from her job because of pregnancy as long as she is able to perform her job, and
  • must allow her to return to work following recovery from a pregnancy-related condition to the same extent that employees on sick and disability leave for other reasons are allowed to return.

The ADA may require an employer to provide leave beyond that which it usually allows its employees to take, as a reasonable accommodation for an employee with a pregnancy-related impairment that is a disability.

  • Medical Benefits. The PDA requires employers who offer health insurance to include coverage of pregnancy, childbirth, and related medical conditions. An employer must provide the same terms and conditions for pregnancy-related benefits as it provides for benefits relating to other medical conditions.

The Americans with Disabilities Act - Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia.

An employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of the pregnancy-related disability, unless the accommodation would result in significant difficulty or expense ("undue hardship").

Examples of reasonable accommodations that may be necessary for a pregnancy-related disability include:

  • Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how as essential or marginal function is performed;
  • Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations;
  • 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; and
  • Temporarily reassigning an employee to a light duty position.

Other Federal Laws Affecting Pregnant Workers - The Family and Medical Leave Act (FMLA) allows eligible employees of employers with 50 or more employees to take up to 12 workweeks of leave for, among other things, the birth and care of the employee's newborn child and for the employee's own serious health condition.

Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide "reasonable break time" for hourly employees to express breast milk until the child's first birthday. Employers are required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." Employers with fewer than 50 employees are not subject to this requirement if it "would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer's business."

Editor's Note: Possibly the most controversial aspect of the new guidance relates to the requirement that employers accommodate a pregnant employee by providing light duty just as the employer would for an employee with an on-the-job injury or an ADA-covered disability. It was previously thought that employers did not need to do so unless the woman had a pregnancy-related impairment that rose to the level of a "disability" under the ADA. Whether the EEOC's Guidance will be accepted by the courts remains unclear.

The Republican gains in the November elections were indeed impressive, the most talked-about gain being that of a likely 9 Senate seats so that the new Senate will likely have a 54-46 Republican majority. The gains in the House of Representatives were at least 12 seats to something like a 247-188 Republican majority. Together, the election gave the Republicans their highest majority in Congress since the 1920's.

Republican gains were also evident at the state level. Republicans picked up 2 gubernatorial seats so that there would be a 31-19 majority of Republican Governors. Even more impressive is that the Republicans are projected to have a majority of 69 of the 99 state legislatures in the U.S., picking up 9 state legislatures.

Exit polls indicated that 3 most important issues to the voters were (1) the economy, (2) healthcare, and (3) immigration. On the healthcare issue, the exit polls revealed that almost an equal number of voters wanted to repeal Obamacare versus those who wanted greater government responsibility for healthcare. It is also significant, in terms of labor management relations, that certain candidates were elected that had taken an adverse position towards organized labor in their respective states or localities. Such winners included Governors Scott Walker in Wisconsin, Rick Snyder in Michigan, and John Kasich in Ohio. One Democratic Governor survived labor union opposition, Gina Raimondo in Rhode Island, the state treasurer who had supported deep pension cuts to state employees. The votes suggested that politicians can oppose the union agenda and still win elections.

On the other hand, union leaders claim that certain polls indicated voters were sympathetic with some union-backed efforts, like raising the minimum wage and increasing social security benefits. It may be particularly significant that voters backed minimum wage increases in 4 Republican-leaning states, including Alaska, Arkansas, Nevada and South Dakota. Voters passed ballot initiatives raising the minimum wage as high as $9.75 an hour in those states, indicating that minimum wage increases are popular with the electorate. In January, 29 states will have higher minimum wages than that of the federal minimum wage, up from 23 previously.

In public statements by the new Senate majority leader, Mitch McConnell of Kentucky, and President Obama, the two expressed some mutual interest in breaking Congressional gridlocks in the areas of bilateral trade agreements and corporate tax reform. A tax-overhaul bill might also contain a compromise acceptable to the President in which certain revenues are earmarked for infrastructure measures that could aid the economy. However, the same individuals noted contentious future issues such as the measure to expedite the Keystone XL pipeline which would provide oil through the U.S. to the refineries, and President Obama's vow to unilaterally implement immigration reforms without Congressional approval including some broader form of "amnesty" for illegals living in the U.S. As this newsletter goes to press, the President was scheduled to reveal his immigration plans in a speech scheduled for the evening of November 20, 2014.

Regarding Obamacare, Senator McConnell indicated that while there may be some sort of symbolic vote to repeal Obamacare, it is unrealistic to expect such a repeal in light of the President's veto power. It is likely instead that the Republicans will concentrate on repealing and or reforming certain particularly unpopular portions of Obamacare, beginning with a repeal of the medical device tax, and perhaps a measure to raise the required coverage of part-time workers above 30 hours a week. A particularly interesting issue concerns the individual healthcare mandate, which Republicans may try to repeal, but which the President considers crucial to ObamaCare. Republicans may also pass more bills in Congress that will be sent to the President's desk for signing or veto.

Republicans can't be too giddy about their recent successes, however, as it is anticipated that the 2016 elections will bring about a much larger turnout of voters, particularly minorities and younger voters who tend to vote Democratic. Further, of the 32 seats in the U.S. Senate that are up for re-election in 2016, Republicans are defending 19, including 6 first-term Republican Senators from states that supported President Obama in 2012-Wisconsin, Illinois, Pennsylvania, Florida, Ohio, and New Hampshire.

One wonders what effect the elections will have on two labor law measures that are pending, the so-called "quickie" NLRB election rule, and the "persuader" regulations that will make it difficult for attorneys or consultants to render "advice" to employers without completing numerous forms that must be publicly filed. The Administration may try to rush through such measures in the lame duck Congressional session before the end of this year, when the Republicans will assume more power. There is some hope that the Administration will reconsider its support of the persuader measure, as even the American Bar Association has been highly critical of it.

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