In honor of Mother’s Day, let’s spend some time looking at the various legal obligations and best practices employers should consider regarding pregnancy and motherhood.
Understand that legal obligations pertaining to pregnancy discrimination require compliance with numerous federal and state laws. This includes Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), as amended by the Patient Protection and Affordable Care Act (ACA), as well as state laws. Accordingly, compliance requires attention to almost all facets of the employer-employee relationship, including hiring, training, promotion, leave and other fringe benefits, reasonable accommodation requests, break time for nursing mothers, and general terms and conditions of employment such as compensation, harassment prevention, and prohibitions against retaliation.
Know that the Pregnancy Discrimination Act protects more than just pregnancy. It protects “pregnancy, childbirth, or related medical conditions.” This can potentially involve conditions arising before, during, or after pregnancy.
Establish clear policies prohibiting pregnancy discrimination and harassment and addressing accommodations for pregnancy-related conditions. Train your managers and employees on these policies. Any policy or practice that may have an adverse impact on pregnant women should be reviewed and revised if necessary.
Carefully consider who will have decision-making authority when it comes to pregnancy-related requests for accommodation. Do not let each manager make decisions on his/her own.
Engage in a dialogue with the pregnant employee who is seeking accommodation. This should be an interactive process, not one party dictating to the other what they want. Be flexible, be creative, be sympathetic, and be accommodating where possible.
Pregnancy discrimination is one of the EEOC’s enforcement priorities, and denying an accommodation request should be reviewed carefully. If an accommodation request is not reasonable or presents an undue hardship or direct threat, discuss the basis for this conclusion with the employee and determine whether alternative reasonable accommodations may be available.
Document all of your efforts to discuss or provide accommodations. Employers should document all reasonable accommodations requests and the interactive process. This includes documenting when accommodation requests are made and to whom, what accommodations were requested by the employee and/or submitted by the employee’s health care provider, what accommodations were proposed and/or considered by the employer, whether certain accommodations were adopted, and if certain accommodations were denied, the reason why. Remember, the interactive process is fluid and may require adjustments as circumstances change, including determinations of whether the accommodation enables the employee to perform the job’s essential functions.
Prepare and maintain job descriptions that accurately reflect the essential (and other) functions of the job. Among other things, requirements such as physical attendance, availability during certain hours, and the ability to perform physical tasks should be carefully considered and addressed in the job description.
Focus on the employee’s ability to do the job. Make hiring, promotion, and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy, childbirth, or related medical conditions. For example, don’t assume that a pregnant employee will take time off prior to her due date.
Provide lactation breaks as required by law. If you have an employee who is breastfeeding, provide her with reasonable breaks to express breast milk for one year after her child’s birth; and a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.
Be aware that many states (including Utah, Arizona, and Colorado) have laws regarding the rights of pregnant employees or relating to pregnancy, childbirth, or related medical conditions. For example, some state laws have a lower employee threshold for companies to be covered (federal law requires employers to have at least 15 employees to be covered by the Pregnancy Discrimination Act), allow leave beyond what FMLA might require, and have more stringent reinstatement rights for employees returning from pregnancy.
Call Employers Council with questions; we can help. Happy Mother’s Day!