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Several federal laws protect or grant rights to workers on the basis of pregnancy or related medical conditions. These rights and protections may include the right to be free from discrimination, harassment, and stereotypes; the right to reasonable workplace accommodations, such as job modifications, extended or additional breaks, and leave; the right to leave for pregnancy, childbirth, related medical conditions, and bonding; and the right to equivalent fringe benefits, such as health insurance.
For example, the Pregnancy Discrimination Act (PDA), which applies to employers with 15 or more workers, protects women from discriminatory actions based on pregnancy, childbirth, or related medical conditions.
The Family and Medical Leave Act (FMLA) , which applies to employers of 50 or more workers, provides leave entitlements to pregnant workers.
Further, though pregnancy itself is not considered a disability, some pregnant workers may be eligible for additional protection under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act (ADAAA), due to conditions related to pregnancy. The ADA applies to employers with 15 or more workers.
In 1978, the PDA amended Title VII of the Civil Rights Act to clarify that discrimination based on sex also includes discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions.
The PDA, which covers employers with 15 or more workers, added two fundamental requirements to the law:
• Covered employers may not discriminate against an employee or applicant on the basis of her pregnancy, childbirth, or related medical conditions, and
• Women who are affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons who, though not affected by pregnancy, are otherwise similar in their ability or inability to work.
The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits). Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, and potential pregnancy.
Forms of discrimination. Pregnancy discrimination may occur in the form of disparate treatment (pregnancy, childbirth, or a related medical condition is a motivating factor in an adverse employment action) or disparate impact (an otherwise neutral policy or practice has a significant negative impact on women affected by pregnancy, childbirth, or a related medical condition, and either the practice is not job-related and consistent with business necessity or there is a less discriminatory alternative that the employer has refused to adopt).
The PDA also prohibits harassment based on pregnancy, childbirth, or related medical conditions.
Employer policies that do not facially discriminate on the basis of pregnancy may still violate the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification (29 CFR 1604.10).
In July 2015, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing pregnancy discrimination and related issues. Though EEOC guidance is not law or regulation, it indicates how existing laws will be interpreted and enforced by the agency. Employers should consider the guidance in developing and applying policies related to pregnant workers and accommodations.
EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Scope of pregnancy. The EEOC’s 2015 guidance makes it clear that Title VII, as amended by the PDA, prohibits discrimination based on “the whole range of matters concerning the childbearing process.”
This not only includes current pregnancy, but also past pregnancy, potential or intended pregnancy (i.e., because a woman might get pregnant), and medical conditions related to pregnancy or childbirth.
Reproductive risk, fertility, and childbearing. The PDA's protection extends to differential treatment based on an employee's fertility or childbearing capacity. Thus, sex-specific policies restricting women from certain jobs based on risk to reproductive health, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer's concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions.
An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Thus, demoting an employee with a good performance record 2 weeks after she informed her manager that she was trying to become pregnant would constitute evidence of pregnancy discrimination.
Employment decisions related to infertility treatments also trigger liability under the PDA and Title VII in limited circumstances. Because surgical impregnation is intrinsically tied to a woman's childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure. In contrast, with respect to the exclusion of infertility from employer-provided health insurance, courts have generally held that exclusions of all infertility coverage for all employees are gender-neutral and do not violate Title VII. Title VII may be violated by exclusions of particular treatments that apply only to one gender.
Employment decisions based on an employee’s use of contraceptives may also constitute unlawful discrimination based on gender and/or pregnancy. Because contraception is a means by which a woman can control her capacity to become pregnant, the PDA’s prohibition of discrimination based on potential pregnancy includes a prohibition on discrimination related to the use of contraceptives. Thus, an employer could not discharge an employee because she uses contraceptives.
Past pregnancy. An employee or applicant may not be discriminated against because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically related pregnancy leave following the birth of her child if the employee's pregnancy is the reason for the termination. Close proximity between the employee's return to work and the employer's decision to terminate her, coupled with an explanation for the termination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.
Lactation and breastfeeding. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination under the PDA.
An employee must have the same freedom to address lactation-related needs that she and her coworkers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Termination of pregnancy. The PDA also protects women from discrimination related to termination or loss of pregnancy, including having or contemplating an abortion. Employees are also protected from discrimination for deciding not to terminate a pregnancy.
Bona Fide Occupational Qualification (BFOQ) defense. In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful due to a BFOQ. This defense, however, is extremely narrow and the employer must show that pregnancy actually interferes with a female employee’s ability to perform the job based on objective, verifiable skills required by the job. Employers have rarely been able to establish a pregnancy-based BFOQ.
Applicants. The PDA applies to applicants as well as employees. Thus, an employer cannot refuse to hire an otherwise qualified applicant based on her pregnancy-related condition. Discrimination in hiring includes decisions based on stereotypes about or prejudices against pregnant workers or the prejudices of coworkers, clients, or customers.
For all applicants, the employer should concentrate on the required training period, physical requirements, and specific functions of the job—not on whether an applicant is pregnant, has children, or is of childbearing age.
Though discrimination based on caregiving responsibilities falls outside the specific parameters of the PDA, and though caregiver status is not a protected class under federal law, discrimination against workers with caregiving responsibilities may violate Title VII if the discrimination is based on sex or another characteristic protected by law.
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 need extensive time off for the child's care or that the child's medical condition would impose high healthcare costs.
Although an employer may require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.
Even when an employer believes it is acting in an employee's best interest, adverse actions based on assumptions or stereotypes are prohibited.
For instance, it is unlawful for an employer to involuntarily reassign a pregnant employee to a lower-paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.
Additionally, employers that reassign pregnant workers based on unfounded concerns for health and safety may violate the ADA by engaging as “regarded as” disability discrimination.
Employers should never require—explicitly or constructively—a pregnant employee to take leave, light duty, or other work accommodations that she does not want or did not request.
Employers may be required to provide reasonable accommodations to pregnant workers under two federal laws: the PDA and the ADA.
The ADA specifically requires employers to provide reasonable accommodations for known disabilities of qualified individuals; covered disabilities may include pregnancy-related conditions or the interaction of pregnancy with underlying impairments.
Unlike the ADA, the black letter text of the PDA does not specifically set forth requirements that employers provide reasonable accommodations to pregnant workers. However, both case law and EEOC guidance have found that employers may still be required to provide reasonable accommodations to workers on the basis of pregnancy under the PDA if similar accommodations are provided to other workers.
Additionally, many states have added pregnancy accommodation requirements to their state civil rights and equal opportunity acts.
Young v. United Parcel Service, Inc., 575 US ___ (2015), is a landmark ruling in which the U.S. Supreme Court addressed the question of whether employers must provide pregnancy accommodations under the PDA.
In the Young case, the employer provided temporary modified work assignments only to drivers who were injured on the job, suffered from a disability as defined by the ADA, or lost their Department of Transportation certifications. Young, a pregnant employee, requested a modified work assignment for her pregnancy-related lifting restriction; however, the employer refused to grant her request.
The Court held that an employer’s light-duty policy can be challenged as sex discrimination if the policy provides light duty to a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.
According to the Court, an employee may prove discrimination under the PDA by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others who were similar in their ability or inability to work.
Once the employee has satisfied these requirements, the employer must articulate a legitimate, nondiscriminatory reason for treating the pregnant worker differently than a nonpregnant worker similar in his or her ability or inability to work. Even if an employer can assert a legitimate nondiscriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual (i.e., not the “real” reason for the different treatment).
Note: The conflict in Young predated the amended, expanded ADA, which now offers broader protections to medical conditions and limitations related to pregnancy. Therefore, the court’s decision in this case may be of limited significance, but should still be considered applicable to circumstances in which a pregnancy is without complication, but for which the employee requests accommodation.
In response to the Supreme Court’s decision in Young, the EEOC’s July 2015 guidance also addresses an employer’s obligation to accommodate pregnant employees.
EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Light duty as a benefit. Specifically, the EEOC guidance restates that an employer is required, by the PDA, to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay.
A pregnant employee may also be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.
Examples of reasonable accommodations. Some examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments include redistributing marginal functions that the employee is unable to perform due to the disability, altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting, or bending requirements), modifying workplace policies, purchasing or modifying equipment and devices, modifying work schedules, and granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
The EEOC also states that temporary assignment to a light-duty position may be a reasonable accommodation for a pregnancy-related condition that constitutes an ADA-protected disability. For example, if a pregnant employee’s physician places lifting restrictions on the employee and certifies that she should not lift or push more than 20 pounds due to her pregnancy-related condition, a light-duty position may be appropriate for that employee.
The ADA defines the term "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having a disability.
Although pregnancy itself is not an impairment within the meaning of the ADA and, thus, is never a disability on its own, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.
ADAAA expansions. Before the enactment of the ADAAA, some courts held that medical conditions related to pregnancy were not impairments within the meaning of the ADA and could not be disabilities. However, the ADAAA clearly expanded the law’s protection. In applying the ADA as amended, many courts have since concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA.
Under the ADAAA, the definition of “disability” should be construed broadly and the question of whether an individual's impairment is a covered disability should not demand extensive analysis. Further, under the ADAAA there is no requirement that an impairment last a particular length of time to be considered substantially limiting. Finally, an impairment’s cause is not relevant in determining whether the impairment itself is a disability.
Pregnancy-related impairments. Under the amended ADA, a number of pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary. Additionally, some impairments of the reproductive system may make a pregnancy more difficult and, thus, may necessitate certain physical restrictions to enable a full term pregnancy or may result in limitations following childbirth.
Impairments involving other major bodily functions can also result in pregnancy-related limitations.
Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function).
Reasonable accommodations. A pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. For additional discussion, see the Reasonable Accommodations section above.
Please see the Disabilities (ADA) topical analysis for additional discussion of the ADA.
Workers may be entitled to leave for pregnancy, conditions related to pregnancy, or child bonding under the antidiscrimination provisions of laws such as the ADA and PDA or under the leave requirements of the FMLA.
The federal FMLA, which applies to employers with 50 or more employees, requires covered employers to provide up to 12 weeks of unpaid, job-protected leave in a 12-month period for an employee's medical or family needs, including an employee's own serious health condition.
Incapacity because of pregnancy or prenatal care is generally considered a serious health condition under the FMLA.
FMLA and the birth of a child. Under the FMLA, bonding leave for the birth of a child is available to either men or women, and no medical certification is required.
There are some special requirements and exceptions for the birth of a child:
• Leave for the birth of a child must be completed within 12 months of the date of birth.
• An employer is not required by the FMLA to grant intermittent or reduced leave to eligible employees to care for (meaning “to bond with”) their newborn. Employers, however, may elect to do so. However, if the mother has a serious health condition in connection with the birth of her child, or if the newborn child has a serious health condition, the employer's consent to intermittent or reduced leave is not required.
• Employees can take as much or as little FMLA bonding leave time as they want (subject, of course, to the 12-week maximum and any reduction for any other leave taken that period) and need not provide any certification. Leave for birth is available automatically and does not relate to any medical need of either the parent or the newborn child.
Please see the Leave of Absence (FMLA) topical analysis for additional discussion of the FMLA.
The PDA does not require employers to provide pregnancy leave, but if an employer does have a short-term disability or similar leave plan, it must be available to pregnant women just as it is to employees with other temporary disabilities.
Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
• May not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
• May not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
• May not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
• Must allow an employee who is temporarily disabled because of pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the FMLA, the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Parental leave. Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions.
However, if general parental leave is offered, this leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends bonding leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.
In addition, the FMLA requires covered employers to provide 12 weeks of job-protected leave for covered employees to care for and bond with a newborn baby or a recently adopted child.
Employer may not require leave. An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee's best interests. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby's birth, nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.
Many states have additional leave laws related to pregnancy and childbirth. Some laws mirror the PDA by requiring only that pregnant employees be treated the same as other employees who are provided temporary disability leave.
However, some state laws go further and require that special leaves, or leaves for a specific period of time, and reinstatement be offered to pregnant employees, even if these leaves are not offered to other temporarily disabled employees.
Additionally, several states have their own family and medical leave laws that are similar to the federal FMLA, but may cover smaller employers or offer more generous leave entitlements.
Employers should follow the law that grants the most generous leave entitlement to employees. This means that if the state has more generous provisions for additional leave than the federal law requires, the employer is required to extend additional leave to the employee as granted by those state provisions.
Federal law does not require employers to provide healthcare insurance for employees. If insurance is offered, however, it must cover expenses for pregnancy-related conditions on the same basis as for other medical conditions.
Terms and conditions of coverage. Employers that have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. For example, if the plan covers preexisting conditions, it must cover the costs of an insured employee's preexisting pregnancy. If the plan covers a particular percentage of the medical costs incurred for non-pregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related conditions. If the medical benefits are subject to a deductible, pregnancy-related medical cost, the employee may not be subject to a higher deductible.
Medical expenses for services. The employer’s health insurance plan may not impose limitations applicable only to pregnancy-related medical expenses for any services, such as doctor's office visits, laboratory tests, x-rays, ambulance service, or recovery room use.
The plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.
Insurance for expenses arising from an abortion is not required except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion.
If FMLA leave is being used for pregnancy-related purposes, the FMLA requires employers to continue to offer insurance coverage and to pay the employer's share of the premium.
Please see the Employee Benefits topical analysis for additional discussion of healthcare insurance.
In the area of fringe benefits, employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. In other words, a woman unable to work for pregnancy-related reasons is entitled to sick leave and other benefits on the same basis as employees who are temporarily disabled for other medical reasons and unable to work.
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 disability leave. For example, if an employer provides disability pay to other disabled employees when they are on leave and allows them to return to the same or a similar position, such benefits and reinstatement rights must be given to pregnant employees.
No marriage requirements allowed. Pregnancy-related benefits cannot be limited to married employees.
As noted above, because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination under the PDA.
An employee must have the same freedom to address lactation-related needs that she and her coworkers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Additionally, the Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time and facilities for nursing mothers
Section 4207 of the Affordable Care Act (ACA) amended the FLSA to require employers to provide reasonable break time for a covered employee to express breast milk for her nursing child for at least 1 year after the child’s birth.
Employers are also 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 the employee to express breast milk.
The Department of Labor (DOL) has published a Fact Sheet providing general information on the break time requirement for nursing mothers. The Fact Sheet can be found at http://www.dol.gov.
Compensation for breaks. Employers are not required, under the FLSA, to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide paid breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. The employer does not have to compensate for time that exceeds the paid break time; however, the DOL encourages employers to permit nursing employees to make up unpaid break time. Nursing breaks should not be counted as FMLA time or against an employee’s FMLA entitlement.
Exemptions. The ACA’s amendment to the FLSA regarding breastfeeding does not apply to white-collar exempt employees (29 U.S.C. 213(a)) or certain employees within particular industries or individuals that hold specific positions (29 U.S.C. 213(b)).
To the extent employers choose, nonetheless, to provide these rest breaks to salaried, exempt employees (as it is expected most employers will do), they should not seek to make deductions from salaries for lactation breaks. Salaried, exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide.
Employers with fewer than 50 employees are also 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. All of the employees of an employer are counted for the purpose of determining whether the employer meets the 50-employee threshold. These provisions do not preempt a state law that provides greater protections to employees.
Frequency and duration. According to the DOL, the frequency of breaks needed to express breast milk varies, depending on factors such as the age of the baby, the number of feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. As a general guideline, the DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift and that longer shifts will require additional breaks to express milk. Reasonable break time for lactation must also include the time it takes to get to the lactation site; the time it takes to gather, set up, and clean a breast pump or other supplies; and the time to secure and store the milk.
Amenities for a lactation break room. A bathroom, even if private, is not a permissible location for lactation facilities.
Where practicable, employers should make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable for an employer to provide a room, the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or space should be covered to ensure the space is shielded from view.
With any space provided for expressing milk, the employer must ensure the employee’s privacy through means such as signs that designate when the space is in use or a lock on the door. The employer is not obligated to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view and free from intrusion from coworkers and the public.
In order to be a functional space, the room must contain, at a minimum, a place for the nursing mother to sit and a flat surface, other than the floor, on which to place the pump. Ideally, the space should have access to electricity so that a nursing mother can plug in an electric pump.
The DOL recognizes that there are a range of additional features that some employers have included when providing spaces for employees to use to express breast milk—examples include sinks within or near the room for washing hands and cleaning pump attachments and refrigerators within or near the room for storing expressed milk. While such additional features are not required, providing them may decrease the amount of break time needed by nursing employees to express milk.
Employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk; however, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work.
In addition to the federal requirements under the FLSA, some state laws also require employers to provide reasonable time for an employee to express breast milk or to coordinate designated break times to coincide with the employee's need to express breast milk. The employer should comply with the law that provides the most generous benefit to employees.
Many states have also passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and any other location where the mother otherwise has the right to be.
Liability under the federal and state laws above can be avoided by undertaking the following best practices:
• Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.
• When complaints occur, respond promptly and effectively.
• Implement strong policies against pregnancy discrimination and harassment.
• Evaluate leave policies to ensure restrictive provisions or practices do not discriminate on the basis of pregnancy or related medical condition.
• Similarly evaluate any workplace accommodation policies, such as those granting light duty or job modification. Make it clear, through policies and practice, that these and other reasonable accommodations are available to workers with pregnancy-related impairments.
• Never require—explicitly or constructively—a pregnant employee to take leave, light duty, or other work accommodations that she does not want or did not request.
• Check state and local laws for additional requirements.
For a concise multi-state comparison of state laws, see the State Law Chart Builder.
For additional information on the PDA, contact the EEOC at: http://www.eeoc.gov.
For additional state and federal analysis, please see the related topic pages for:
Last reviewed on June 23, 2017.
Related Topics:
National
Several federal laws protect or grant rights to workers on the basis of pregnancy or related medical conditions. These rights and protections may include the right to be free from discrimination, harassment, and stereotypes; the right to reasonable workplace accommodations, such as job modifications, extended or additional breaks, and leave; the right to leave for pregnancy, childbirth, related medical conditions, and bonding; and the right to equivalent fringe benefits, such as health insurance.
For example, the Pregnancy Discrimination Act (PDA), which applies to employers with 15 or more workers, protects women from discriminatory actions based on pregnancy, childbirth, or related medical conditions.
The Family and Medical Leave Act (FMLA) , which applies to employers of 50 or more workers, provides leave entitlements to pregnant workers.
Further, though pregnancy itself is not considered a disability, some pregnant workers may be eligible for additional protection under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act (ADAAA), due to conditions related to pregnancy. The ADA applies to employers with 15 or more workers.
In 1978, the PDA amended Title VII of the Civil Rights Act to clarify that discrimination based on sex also includes discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions.
The PDA, which covers employers with 15 or more workers, added two fundamental requirements to the law:
• Covered employers may not discriminate against an employee or applicant on the basis of her pregnancy, childbirth, or related medical conditions, and
• Women who are affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons who, though not affected by pregnancy, are otherwise similar in their ability or inability to work.
The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits). Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, and potential pregnancy.
Forms of discrimination. Pregnancy discrimination may occur in the form of disparate treatment (pregnancy, childbirth, or a related medical condition is a motivating factor in an adverse employment action) or disparate impact (an otherwise neutral policy or practice has a significant negative impact on women affected by pregnancy, childbirth, or a related medical condition, and either the practice is not job-related and consistent with business necessity or there is a less discriminatory alternative that the employer has refused to adopt).
The PDA also prohibits harassment based on pregnancy, childbirth, or related medical conditions.
Employer policies that do not facially discriminate on the basis of pregnancy may still violate the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification (29 CFR 1604.10).
In July 2015, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing pregnancy discrimination and related issues. Though EEOC guidance is not law or regulation, it indicates how existing laws will be interpreted and enforced by the agency. Employers should consider the guidance in developing and applying policies related to pregnant workers and accommodations.
EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Scope of pregnancy. The EEOC’s 2015 guidance makes it clear that Title VII, as amended by the PDA, prohibits discrimination based on “the whole range of matters concerning the childbearing process.”
This not only includes current pregnancy, but also past pregnancy, potential or intended pregnancy (i.e., because a woman might get pregnant), and medical conditions related to pregnancy or childbirth.
Reproductive risk, fertility, and childbearing. The PDA's protection extends to differential treatment based on an employee's fertility or childbearing capacity. Thus, sex-specific policies restricting women from certain jobs based on risk to reproductive health, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer's concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions.
An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Thus, demoting an employee with a good performance record 2 weeks after she informed her manager that she was trying to become pregnant would constitute evidence of pregnancy discrimination.
Employment decisions related to infertility treatments also trigger liability under the PDA and Title VII in limited circumstances. Because surgical impregnation is intrinsically tied to a woman's childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure. In contrast, with respect to the exclusion of infertility from employer-provided health insurance, courts have generally held that exclusions of all infertility coverage for all employees are gender-neutral and do not violate Title VII. Title VII may be violated by exclusions of particular treatments that apply only to one gender.
Employment decisions based on an employee’s use of contraceptives may also constitute unlawful discrimination based on gender and/or pregnancy. Because contraception is a means by which a woman can control her capacity to become pregnant, the PDA’s prohibition of discrimination based on potential pregnancy includes a prohibition on discrimination related to the use of contraceptives. Thus, an employer could not discharge an employee because she uses contraceptives.
Past pregnancy. An employee or applicant may not be discriminated against because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically related pregnancy leave following the birth of her child if the employee's pregnancy is the reason for the termination. Close proximity between the employee's return to work and the employer's decision to terminate her, coupled with an explanation for the termination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.
Lactation and breastfeeding. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination under the PDA.
An employee must have the same freedom to address lactation-related needs that she and her coworkers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Termination of pregnancy. The PDA also protects women from discrimination related to termination or loss of pregnancy, including having or contemplating an abortion. Employees are also protected from discrimination for deciding not to terminate a pregnancy.
Bona Fide Occupational Qualification (BFOQ) defense. In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful due to a BFOQ. This defense, however, is extremely narrow and the employer must show that pregnancy actually interferes with a female employee’s ability to perform the job based on objective, verifiable skills required by the job. Employers have rarely been able to establish a pregnancy-based BFOQ.
Applicants. The PDA applies to applicants as well as employees. Thus, an employer cannot refuse to hire an otherwise qualified applicant based on her pregnancy-related condition. Discrimination in hiring includes decisions based on stereotypes about or prejudices against pregnant workers or the prejudices of coworkers, clients, or customers.
For all applicants, the employer should concentrate on the required training period, physical requirements, and specific functions of the job—not on whether an applicant is pregnant, has children, or is of childbearing age.
Though discrimination based on caregiving responsibilities falls outside the specific parameters of the PDA, and though caregiver status is not a protected class under federal law, discrimination against workers with caregiving responsibilities may violate Title VII if the discrimination is based on sex or another characteristic protected by law.
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 need extensive time off for the child's care or that the child's medical condition would impose high healthcare costs.
Although an employer may require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.
Even when an employer believes it is acting in an employee's best interest, adverse actions based on assumptions or stereotypes are prohibited.
For instance, it is unlawful for an employer to involuntarily reassign a pregnant employee to a lower-paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.
Additionally, employers that reassign pregnant workers based on unfounded concerns for health and safety may violate the ADA by engaging as “regarded as” disability discrimination.
Employers should never require—explicitly or constructively—a pregnant employee to take leave, light duty, or other work accommodations that she does not want or did not request.
Employers may be required to provide reasonable accommodations to pregnant workers under two federal laws: the PDA and the ADA.
The ADA specifically requires employers to provide reasonable accommodations for known disabilities of qualified individuals; covered disabilities may include pregnancy-related conditions or the interaction of pregnancy with underlying impairments.
Unlike the ADA, the black letter text of the PDA does not specifically set forth requirements that employers provide reasonable accommodations to pregnant workers. However, both case law and EEOC guidance have found that employers may still be required to provide reasonable accommodations to workers on the basis of pregnancy under the PDA if similar accommodations are provided to other workers.
Additionally, many states have added pregnancy accommodation requirements to their state civil rights and equal opportunity acts.
Young v. United Parcel Service, Inc., 575 US ___ (2015), is a landmark ruling in which the U.S. Supreme Court addressed the question of whether employers must provide pregnancy accommodations under the PDA.
In the Young case, the employer provided temporary modified work assignments only to drivers who were injured on the job, suffered from a disability as defined by the ADA, or lost their Department of Transportation certifications. Young, a pregnant employee, requested a modified work assignment for her pregnancy-related lifting restriction; however, the employer refused to grant her request.
The Court held that an employer’s light-duty policy can be challenged as sex discrimination if the policy provides light duty to a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.
According to the Court, an employee may prove discrimination under the PDA by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others who were similar in their ability or inability to work.
Once the employee has satisfied these requirements, the employer must articulate a legitimate, nondiscriminatory reason for treating the pregnant worker differently than a nonpregnant worker similar in his or her ability or inability to work. Even if an employer can assert a legitimate nondiscriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual (i.e., not the “real” reason for the different treatment).
Note: The conflict in Young predated the amended, expanded ADA, which now offers broader protections to medical conditions and limitations related to pregnancy. Therefore, the court’s decision in this case may be of limited significance, but should still be considered applicable to circumstances in which a pregnancy is without complication, but for which the employee requests accommodation.
In response to the Supreme Court’s decision in Young, the EEOC’s July 2015 guidance also addresses an employer’s obligation to accommodate pregnant employees.
EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Light duty as a benefit. Specifically, the EEOC guidance restates that an employer is required, by the PDA, to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay.
A pregnant employee may also be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.
Examples of reasonable accommodations. Some examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments include redistributing marginal functions that the employee is unable to perform due to the disability, altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting, or bending requirements), modifying workplace policies, purchasing or modifying equipment and devices, modifying work schedules, and granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
The EEOC also states that temporary assignment to a light-duty position may be a reasonable accommodation for a pregnancy-related condition that constitutes an ADA-protected disability. For example, if a pregnant employee’s physician places lifting restrictions on the employee and certifies that she should not lift or push more than 20 pounds due to her pregnancy-related condition, a light-duty position may be appropriate for that employee.
The ADA defines the term "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having a disability.
Although pregnancy itself is not an impairment within the meaning of the ADA and, thus, is never a disability on its own, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.
ADAAA expansions. Before the enactment of the ADAAA, some courts held that medical conditions related to pregnancy were not impairments within the meaning of the ADA and could not be disabilities. However, the ADAAA clearly expanded the law’s protection. In applying the ADA as amended, many courts have since concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA.
Under the ADAAA, the definition of “disability” should be construed broadly and the question of whether an individual's impairment is a covered disability should not demand extensive analysis. Further, under the ADAAA there is no requirement that an impairment last a particular length of time to be considered substantially limiting. Finally, an impairment’s cause is not relevant in determining whether the impairment itself is a disability.
Pregnancy-related impairments. Under the amended ADA, a number of pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary. Additionally, some impairments of the reproductive system may make a pregnancy more difficult and, thus, may necessitate certain physical restrictions to enable a full term pregnancy or may result in limitations following childbirth.
Impairments involving other major bodily functions can also result in pregnancy-related limitations.
Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function).
Reasonable accommodations. A pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. For additional discussion, see the Reasonable Accommodations section above.
Please see the Disabilities (ADA) topical analysis for additional discussion of the ADA.
Workers may be entitled to leave for pregnancy, conditions related to pregnancy, or child bonding under the antidiscrimination provisions of laws such as the ADA and PDA or under the leave requirements of the FMLA.
The federal FMLA, which applies to employers with 50 or more employees, requires covered employers to provide up to 12 weeks of unpaid, job-protected leave in a 12-month period for an employee's medical or family needs, including an employee's own serious health condition.
Incapacity because of pregnancy or prenatal care is generally considered a serious health condition under the FMLA.
FMLA and the birth of a child. Under the FMLA, bonding leave for the birth of a child is available to either men or women, and no medical certification is required.
There are some special requirements and exceptions for the birth of a child:
• Leave for the birth of a child must be completed within 12 months of the date of birth.
• An employer is not required by the FMLA to grant intermittent or reduced leave to eligible employees to care for (meaning “to bond with”) their newborn. Employers, however, may elect to do so. However, if the mother has a serious health condition in connection with the birth of her child, or if the newborn child has a serious health condition, the employer's consent to intermittent or reduced leave is not required.
• Employees can take as much or as little FMLA bonding leave time as they want (subject, of course, to the 12-week maximum and any reduction for any other leave taken that period) and need not provide any certification. Leave for birth is available automatically and does not relate to any medical need of either the parent or the newborn child.
Please see the Leave of Absence (FMLA) topical analysis for additional discussion of the FMLA.
The PDA does not require employers to provide pregnancy leave, but if an employer does have a short-term disability or similar leave plan, it must be available to pregnant women just as it is to employees with other temporary disabilities.
Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
• May not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
• May not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
• May not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
• Must allow an employee who is temporarily disabled because of pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the FMLA, the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Parental leave. Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions.
However, if general parental leave is offered, this leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends bonding leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.
In addition, the FMLA requires covered employers to provide 12 weeks of job-protected leave for covered employees to care for and bond with a newborn baby or a recently adopted child.
Employer may not require leave. An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee's best interests. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby's birth, nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.
Many states have additional leave laws related to pregnancy and childbirth. Some laws mirror the PDA by requiring only that pregnant employees be treated the same as other employees who are provided temporary disability leave.
However, some state laws go further and require that special leaves, or leaves for a specific period of time, and reinstatement be offered to pregnant employees, even if these leaves are not offered to other temporarily disabled employees.
Additionally, several states have their own family and medical leave laws that are similar to the federal FMLA, but may cover smaller employers or offer more generous leave entitlements.
Employers should follow the law that grants the most generous leave entitlement to employees. This means that if the state has more generous provisions for additional leave than the federal law requires, the employer is required to extend additional leave to the employee as granted by those state provisions.
Federal law does not require employers to provide healthcare insurance for employees. If insurance is offered, however, it must cover expenses for pregnancy-related conditions on the same basis as for other medical conditions.
Terms and conditions of coverage. Employers that have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. For example, if the plan covers preexisting conditions, it must cover the costs of an insured employee's preexisting pregnancy. If the plan covers a particular percentage of the medical costs incurred for non-pregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related conditions. If the medical benefits are subject to a deductible, pregnancy-related medical cost, the employee may not be subject to a higher deductible.
Medical expenses for services. The employer’s health insurance plan may not impose limitations applicable only to pregnancy-related medical expenses for any services, such as doctor's office visits, laboratory tests, x-rays, ambulance service, or recovery room use.
The plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.
Insurance for expenses arising from an abortion is not required except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion.
If FMLA leave is being used for pregnancy-related purposes, the FMLA requires employers to continue to offer insurance coverage and to pay the employer's share of the premium.
Please see the Employee Benefits topical analysis for additional discussion of healthcare insurance.
In the area of fringe benefits, employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. In other words, a woman unable to work for pregnancy-related reasons is entitled to sick leave and other benefits on the same basis as employees who are temporarily disabled for other medical reasons and unable to work.
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 disability leave. For example, if an employer provides disability pay to other disabled employees when they are on leave and allows them to return to the same or a similar position, such benefits and reinstatement rights must be given to pregnant employees.
No marriage requirements allowed. Pregnancy-related benefits cannot be limited to married employees.
As noted above, because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination under the PDA.
An employee must have the same freedom to address lactation-related needs that she and her coworkers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Additionally, the Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time and facilities for nursing mothers
Section 4207 of the Affordable Care Act (ACA) amended the FLSA to require employers to provide reasonable break time for a covered employee to express breast milk for her nursing child for at least 1 year after the child’s birth.
Employers are also 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 the employee to express breast milk.
The Department of Labor (DOL) has published a Fact Sheet providing general information on the break time requirement for nursing mothers. The Fact Sheet can be found at http://www.dol.gov.
Compensation for breaks. Employers are not required, under the FLSA, to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide paid breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. The employer does not have to compensate for time that exceeds the paid break time; however, the DOL encourages employers to permit nursing employees to make up unpaid break time. Nursing breaks should not be counted as FMLA time or against an employee’s FMLA entitlement.
Exemptions. The ACA’s amendment to the FLSA regarding breastfeeding does not apply to white-collar exempt employees (29 U.S.C. 213(a)) or certain employees within particular industries or individuals that hold specific positions (29 U.S.C. 213(b)).
To the extent employers choose, nonetheless, to provide these rest breaks to salaried, exempt employees (as it is expected most employers will do), they should not seek to make deductions from salaries for lactation breaks. Salaried, exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide.
Employers with fewer than 50 employees are also 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. All of the employees of an employer are counted for the purpose of determining whether the employer meets the 50-employee threshold. These provisions do not preempt a state law that provides greater protections to employees.
Frequency and duration. According to the DOL, the frequency of breaks needed to express breast milk varies, depending on factors such as the age of the baby, the number of feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. As a general guideline, the DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift and that longer shifts will require additional breaks to express milk. Reasonable break time for lactation must also include the time it takes to get to the lactation site; the time it takes to gather, set up, and clean a breast pump or other supplies; and the time to secure and store the milk.
Amenities for a lactation break room. A bathroom, even if private, is not a permissible location for lactation facilities.
Where practicable, employers should make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable for an employer to provide a room, the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or space should be covered to ensure the space is shielded from view.
With any space provided for expressing milk, the employer must ensure the employee’s privacy through means such as signs that designate when the space is in use or a lock on the door. The employer is not obligated to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view and free from intrusion from coworkers and the public.
In order to be a functional space, the room must contain, at a minimum, a place for the nursing mother to sit and a flat surface, other than the floor, on which to place the pump. Ideally, the space should have access to electricity so that a nursing mother can plug in an electric pump.
The DOL recognizes that there are a range of additional features that some employers have included when providing spaces for employees to use to express breast milk—examples include sinks within or near the room for washing hands and cleaning pump attachments and refrigerators within or near the room for storing expressed milk. While such additional features are not required, providing them may decrease the amount of break time needed by nursing employees to express milk.
Employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk; however, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work.
In addition to the federal requirements under the FLSA, some state laws also require employers to provide reasonable time for an employee to express breast milk or to coordinate designated break times to coincide with the employee's need to express breast milk. The employer should comply with the law that provides the most generous benefit to employees.
Many states have also passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and any other location where the mother otherwise has the right to be.
Liability under the federal and state laws above can be avoided by undertaking the following best practices:
• Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.
• When complaints occur, respond promptly and effectively.
• Implement strong policies against pregnancy discrimination and harassment.
• Evaluate leave policies to ensure restrictive provisions or practices do not discriminate on the basis of pregnancy or related medical condition.
• Similarly evaluate any workplace accommodation policies, such as those granting light duty or job modification. Make it clear, through policies and practice, that these and other reasonable accommodations are available to workers with pregnancy-related impairments.
• Never require—explicitly or constructively—a pregnant employee to take leave, light duty, or other work accommodations that she does not want or did not request.
• Check state and local laws for additional requirements.
For a concise multi-state comparison of state laws, see the State Law Chart Builder.
For additional information on the PDA, contact the EEOC at: http://www.eeoc.gov.
For additional state and federal analysis, please see the related topic pages for:
Last reviewed on June 23, 2017.
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