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EEOC Taking Closer Look at Pregnancy-Related Impairments

By Allen Smith  4/14/2014
 
The U.S. Equal Employment Opportunity Commission (EEOC) is developing guidance on pregnancy and pregnancy-related impairments, Sharon Rennert, EEOC’s senior attorney advisor in the Americans with Disabilities Act (ADA)/Genetic Information Nondiscrimination Act (GINA) Division of the Office of Legal Counsel, told SHRM Online April 10, 2014.

At a National Employment Law Institute conference in Arlington, Va., Rennert told attendees that the agency “is being more aggressive” at arguing that pregnancy-related impairments are disabilities covered by the ADA.

Rennert reminded attendees that pregnancy itself is not a disability and “never has been.” But some pregnant women develop impairments, such as gestational diabetes, that have the potential of being covered disabilities. Whether the impairment lasts several months may be relevant in this determination, so it’s important whether the impairment begins in month two versus month eight.

The agency also will look at limitations in determining whether pregnancy-related impairments are disabilities.

FMLA/ADA/Title VII

Some pregnancy-related impairments are serious health conditions, resulting in coverage by the Family and Medical Leave Act (FMLA). But the FMLA provides only for 12 weeks of leave in a year, not for reasonable accommodation.

So, although morning sickness arguably is a serious health condition and may entitle someone to leave under the FMLA, a pregnant woman who would like to telecommute as a reasonable accommodation for morning sickness has  no accommodation rights unless severe morning sickness—which can lead to hospitalization due to dehydration—also is covered by the ADA. Morning sickness might be covered under the ADA if it lasts over several months and substantially limits a major life activity, like a major bodily function.

Rennert said she is a proponent of trying out reasonable accommodations to see if they will work, such as telecommuting. Try it with a worker for two to six weeks, tweak it, and try it for a few more weeks, she says. If it falls apart, it’s not a reasonable accommodation, but the employer would have made a good-faith effort to accommodate.

Don’t be dismissive of pregnant workers and assume they are protected only by the FMLA and Title VII, she cautioned. Title VII prohibits discrimination against pregnant workers, but does not provide for any right to reasonable accommodation.

Case-by-Case Assessment

But don’t assume pregnancy-related impairments are disabilities, either. Rennert said a Caesarean section might be an indication of a pregnancy-related impairment, but not always.

If pre-eclampsia, which results in hypertension, occurs just in the last month of pregnancy, it arguably hasn’t occurred long enough to be a disability, assuming its symptoms stop after delivery. But if it starts earlier in the pregnancy and lasts several months, it could be an ADA disability, she said.

The assessment of a disability is on a case-by-case basis. And, as the EEOC states in its Enforcement Guidance on the Definition of the Term “Disability”: “Remember that the mere presence of an impairment does not automatically mean that [someone] has a disability. Whether the hypertension rises to the level of a disability will turn on whether the impairment substantially limits … a major life activity.”

Even normal births can take weeks to recover from, but that doesn’t mean those pregnancies are disabilities, she said. “That’s just the normal result of pregnancy, not an impairment,” Rennert remarked.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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