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Must Employers Accommodate Morning Sickness?
Modified work conditions for pregnant women on the rise

By Dana Wilkie   10/2/2013
A pregnant employee comes to you complaining of severe morning sickness and asks to start work later. Must the company accommodate her?

Case law arising from the Americans with Disabilities Act (ADA) suggests that medical conditions related to pregnancy are protected, according to labor and HR experts. That means that courts are starting to recognize that morning sickness, placenta previa, a high risk of miscarriage, gestational diabetes and other pregnancy-related ailments are conditions employers must accommodate, said Jon Hyman, a partner in the labor and employment practice at Ohio-based Kohrman Jackson & Krantz PLL.

“It could be someone might need a temporary modified work schedule because she has morning sickness and can’t work until the nausea subsides,” Hyman said. “It might be someone can’t travel for long distances or long periods of time, or someone needs a stool because she can’t stand for eight hours a day. If an employee came in and said, ‘I have chronic gastritis and may need more bathroom breaks,’ you would make that accommodation because the ADA will almost certainly require you do so. So if a pregnant woman came to you and said, ‘I need to go to the bathroom more often because I’m pregnant,’ you would not be able to deny that request.”

Enhanced Protections

California, New York City and the U.S. Congress are among the entities pushing for broader protections for pregnancy-related conditions.

In September 2013 the New York City Council passed the New York City Pregnant Workers Fairness Act, which requires city employers to provide reasonable accommodations for pregnant women, as well as those with medical conditions related to delivery. Some of these accommodations include rest breaks, assistance with manual labor and adjustments to work schedules—such as time off for prenatal appointments. Companies must also provide pregnant workers with written notice of their rights.

New York City joins a handful of states that have passed similar laws since 2000, including Alaska, California, Connecticut, Hawaii, Illinois, Louisiana and Texas, according to A Better Balance, a legal team that promotes workplace flexibility for U.S. employees caring for relatives.

In addition, a bill that’s before Congress, the federal Pregnant Workers Fairness Act, would amend Title VII of the Civil Rights Act to require employers to give reasonable accommodations to pregnant workers. The bill has yet to be heard by a congressional committee.

Nearly two-thirds of first-time mothers work while pregnant, and 90 percent of those stay on the job into their last two months of pregnancy, according to the ThinkProgress blog, which is part of the Center for American Progress. Yet although the federal Pregnancy Discrimination Act bars employer discrimination based on pregnancy, childbirth or related medical conditions, pregnant workers are often forced out of their job or denied accommodations that allow them to keep working, ThinkProgress asserts.

The National Women’s Law Center has reported several cases that illustrate that pregnant employees aren’t being adequately protected. Among them: A woman who miscarried after her manager refused to excuse her from heavy lifting, and another who lost her unborn child after being forced to lift heavy merchandise at Wal-Mart despite the company’s agreement to put her on light duty.

New York City Council Speaker Christine Quinn said one-fifth of the discrimination charges filed with the Equal Employment Opportunity Commission are related to pregnancy (more than 3,700 have been filed so far in 2013), and the number rose by 65 percent between 1992 and 2007, according to ThinkProgress.

California Law

In December 2012, California’s Department of Fair Employment and Housing broadened workplace protections for pregnant women by requiring employers to accommodate disabilities such as severe morning sickness, preeclampsia, gestational diabetes and other temporary, pregnancy-related conditions.

“Sometimes the employer will need to transfer the employee to a less strenuous position,” said Janie Schulman, partner and co-head of the employment and labor group in the Los Angeles office of Morrison & Foerster LLP. “Issues may come up with exposure to dangerous chemicals or heavy lifting or allowing women to have time off or to modify their schedules for doctor’s appointments, which are pretty darn frequent when you’re pregnant.”

Under the ADA, organizations must make reasonable accommodations for employees who are disabled unless doing so would create an undue hardship on the business. California’s broadened workplace protections don’t provide an undue-hardship exception.

“Employers might say, ‘It’s going to cost us too much money to do this accommodation,’ or ‘That’s too hard, and we just can’t do it,’ ” Schulman said. “Under California’s regulations, the undue-hardship exception isn’t there.”

What Not to Do

The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, also bars employers from limiting a pregnant woman’s duties when she is capable of performing them.

“There used to be a time when, during the last seven weeks of pregnancy, companies were saying, ‘You’ve got to take off,’ or ‘We have to transfer you to another job,’ or ‘You can’t work anymore,’ ” said Michael D. Haberman, a consultant at Georgia-based Omega HR Solutions Inc. “Women’s groups said you can’t do that. There are women perfectly capable of working right until the day they deliver. The law says employers can’t impose conditions on women.”

Dana Wilkie is an online editor/manager for SHRM.

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