What You Need to Know About Pregnancy Discrimination and Accommodations

Editor's  Note: The U.S. Equal Employment Opportunity Commission (EEOC) published proposed regulations to implement the Pregnant Workers Fairness Act (PWFA) on Aug. 11, 2023. Comments regarding this proposal must be submitted no later than Oct. 10, 2023, and final regulations are expected by Dec. 29, 2023. While the proposed regulations may be helpful for employers in understanding how the EEOC is currently interpreting the PWFA, they cannot be relied upon until regulations are finalized.

PURPOSE

Federal employment laws prohibit discrimination against and require accommodations for job applicants and employees due to pregnancy, childbirth, lactation or related medical conditions.

RELEVANT FEDERAL LAWS

The Pregnancy Discrimination Act (PDA) was enacted in 1978, amending Title VII of the Civil Rights Act to prohibit discrimination based on pregnancy, childbirth or related medical conditions.

The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, requires employers to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions.

The Break Time for Nursing Mothers law, passed in 2010 under the Affordable Care Act, amended the Fair Labor Standards Act (FLSA) requiring covered employers to provide breaks when needed and a private location for nursing, nonexempt employees to express breast milk at work.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), effective Dec. 29, 2022, expanded workplace lactation accommodations for nursing employees to include exempt employees.

These laws do not pre-empt state or local laws that provide greater protections.

COVERED EMPLOYERS

The PDA and PWFA cover employers with 15 or more employees, while the Break Time for Nursing Mothers law and the PUMP Act apply to employers covered under the FLSA.

PROHIBITED ACTIONS

Employers may not discriminate based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment. Discrimination is prohibited based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.

Employers may also not deny reasonable accommodations to job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions. Reasonable accommodations must be made unless the accommodation would impose an undue hardship on the employer's business operations.

Employers may not refuse to provide breaks when needed and a private location for nursing employees to express breast milk at work. Employers with fewer than 50 employees may be excepted from these requirements if compliance would cause undue hardship.

PREGNANCY UNDER THE ADA

While the PWFA requires covered employers to reasonably accommodate individuals with known limitations related to pregnancy, childbirth and related medical conditions, some workers may have impairments related to their pregnancies that also qualify as disabilities under the Americans with Disabilities Act (ADA), as amended.

LEAVE FROM WORK

Pregnant employees are entitled to the same amount and type of leave that is provided to employees with other types of short-term disabilities. Employers must hold open a job for a pregnancy-related absence for the same length of time jobs are held open for employees on sick or temporary disability leave. Leave benefits may also be available to affected employees under the Family and Medical Leave Act.

ABORTION

Employees are also protected from discrimination on the basis of the employee having an abortion, not having an abortion or contemplating having an abortion. While federal law does not require an employer's group health plan to cover abortion-related expenses when the life of the mother is not endangered, employers may choose to include coverage for abortions under their plan.

COMMON ISSUES

DISCLOSURE OF PREGNANCY

An applicant or employee has no obligation to disclose a pregnancy or intention to become pregnant to an employer or potential employer. For example, an employer may not retaliate against a new hire who did not disclose her pregnancy during the interview process, even if the employee is later unable to fulfill important aspects of the position due to the timing of parental leave the employee is entitled to.

CONFIDENTIALITY

Employee medical information, including pregnancy-related medical conditions, abortions and miscarriages, may not be disclosed without the employee's express permission. The ADA requires employers to maintain the confidentiality of employee medical information. The Health Insurance Portability and Accountability Act privacy rule may also provide protections when medical information is gleaned from the employer's group health plan.

REQUIRING LEAVE

Employees may not be forced to take leave because they are or have been pregnant. An employer may not require an employee to take a certain amount of leave before or after the birth of a child or related medical condition.

SAFETY CONCERNS

An employer may not take adverse employment actions based on general safety concerns for a pregnant employee, even if the employer believes they are acting in the employee's best interests. For example, an employer cannot reassign a pregnant employee to a different position with less exposure to harmful chemicals or equipment unless agreed to by the employee.

While OSHA has remained neutral on fetal protection issues, certain hazard information must be provided to employees, and the general duty clause may compel employers to provide specific information on reproductive hazards to all affected employees.

STATE LAWS

Many state laws provide additional protections for pregnant employees, such as required workplace accommodations and paid leave. Employers should become familiar with state and local laws in the locations where their employees work.

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