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What laws protect pregnant employees? The Pregnancy Discrimination Act (PDA) protects the pregnant employee from discriminatory actions that are based on her pregnant status. It applies to employers with 15 or more employees. In addition, the Family and Medical Leave Act (FMLA) protects the leave rights of pregnant employees and applies if there are 50 or more employees in the workplace. Some pregnant employees may be eligible for protection under the Americans with Disabilities Act (ADA)..
The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are 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. Various other laws protect the pregnant employee, including the FMLA, and the Health Insurance Portability and Accountability Act (HIPAA), and in some cases, the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA)where pregnancy-related complications qualify as a disability.
The PDA amended Title VII of the Civil Rights Act in 1978. The PDA defines discrimination because of sex to include discrimination because of or on the basis of pregnancy. As with other claims of discrimination under Title VII, an employer will be found to have discriminated on the basis of pregnancy if an employee's pregnancy, childbirth, or related medical condition was all or part of the motivation for an employment decision.
Intentional discrimination under the PDA can be proven using any of the types of evidence used in other sex discrimination cases. Discriminatory motive may be established directly, or it can be inferred from the surrounding facts and circumstances. The PDA further provides that discrimination based on pregnancy includes failure to treat women affected by pregnancy the same for all employment related purposes as other nonpregnant employees similarly affected in their ability or inability to work. 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).
The issue of pregnancy discrimination and accommodation has been addressed by the U.S. Supreme Court in the Young case. The question before the Court was whether and under what circumstances the PDA requires an employer that provides work accommodations to nonpregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations.
The Court's decision articulated a burden-shifting analysis for discrimination under the PDA. According to the Court, an employee with a claim under the PDA may prove discrimination 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).
In Young v, UPS, the Court held that an employer’s light-duty policy can be challenged as intentional 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. In the Young case, the employer provided temporary modified work assignments only for drivers who were either injured on the job, suffered from a disability as defined by the ADA, or lost their Department of Transportation certifications. Young, a pregnant employee, was requesting light duty for her pregnancy-related lifting restriction.
It is important to note that the Court recognized that its decision is of limited significance in light of the ADAAA, which was enacted after the case began and, therefore, did not govern the case.
In July 2015, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing an employer’s obligation to accommodate pregnant employees in light of the Supreme Court’s decision in Young v. United Parcel ServiceDoc. No. 12–1226 (2015). EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Pregnancy discrimination.EEOC’s 2015 guidance makes it clear that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy ( i.e., because a woman might get pregnant), as well as medical conditions related to pregnancy or childbirth.
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 childbearing capacity, 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.
Sex-specific job restrictions can be justified only if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business. 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 implicate Title VII under 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 is gender neutral and does not violate Title VII. Title VII may be implicated by exclusions of particular treatments that apply only to one gender.
Past pregnancy.An employee or applicant may not be subjected to discrimination 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.
An employer cannot refuse to hire a woman because of her pregnancy-related condition as long as she is able to perform the major functions of her job. In addition, an employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of coworkers, clients, or customers. An 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.
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. 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.
As with other fringe benefits, employers who offer employees health insurance must include coverage of pregnancy, childbirth, and related 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.
Note: In Burwell v. Hobby Lobby Stores, Inc. 134 S.Ct. 2751 (2014), the U.S. Supreme Court ruled that the Patient Protection and Affordable Care Act's contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. Please see the national Healthcare Insurance. section.
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 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. Please see the national Disability Insurance section.
Please see the state Disability Insurance section.
No marriage requirements allowed. Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
The PDA does not require employers to provide pregnancy leave, but if an employer does have a short-term disability plan, it must be available to pregnant women just as it is to employees with other temporary disabilities. Nearly all the states have their own laws on pregnancy leave, and most of these mirror the PDA, 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.
EEOC guidelines. 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 interest. 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.
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 due to 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.
Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions, but parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends 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.
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. Please see the national Leave of Absence section.
Please see the state Leave of Absence section.
FMLA and the birth of a child. Under 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 national Leave of Absence section.
Please see the state Leave of Absence section.
State FMLA provisions. Many states have their own family and medical leave laws that are similar to the FMLA. Employers covered by the FMLA should follow its requirements with respect to pregnancy leave, unless the employer's own disability/pregnancy leave policy or the state leave law is more generous. This means that if the state has more generous provisions for additional leave than the federal law allows, the employer is required to extend additional leave to the employee as granted by those state provisions. Please see the national Leave of Absence section.
Please see the state Leave of Absence section.
When requesting medical certification of the need for FMLA leave for incapacity because of pregnancy or prenatal care, the issue of genetic conditions sometimes arises. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting genetic information or discriminating against an employee or applicant on the basis of genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, “genetic information” is defined to include information about an individual’s genetic tests, genetic tests of family members, and a disease or disorder in the family. An employer that receives genetic information in response to a request for medical information under the FMLA will be in violation of GINA unless the employer specifically directs the individual or healthcare provider not to provide genetic information (i.e., by providing the employee with a safe harbor statement accompanying the request for medical certification).
The GINA regulations provide model safe harbor language for this affirmative warning. According to the regulations, if an employer provides the safe harbor notice with the request for medical certification, any receipt of genetic information in response to the request will be considered inadvertent (and will not violate GINA). Therefore, when requesting FMLA certification, it is highly recommended that an employer provide a statement including GINA's model safe harbor language. Please see the national Disabilities (ADA), national Leave of Absence (FMLA) sections.
According to EEOC guidance, discrimination against a worker with caregiving responsibilities violates Title VII if it is based on sex and violates the ADA if it is based on a family member's disability.
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 take off a lot of time for the child's care or that the child's medical condition would impose high healthcare costs.
Section 4207 of the Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for hourly employees to express breast milk until the child's first birthday. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. The DOL states that breaks for expressing breast milk would not properly be considered FMLA or counted against the FMLA leave entitlement. The DOL encourages employers to permit nursing employees to make up unpaid break time.
Facility. Employers are 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 an employee to express breast milk.
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.
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. Therefore, 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. The analysis of reasonable time 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 to secure and store the milk. The DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express milk.
Accommodation. According to EEOC’s guidance, lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able 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 nonincapacitating medical conditions, it must also allow female employees to change their schedules or use sick leave for lactation-related needs.
Exemptions. Employers with fewer than 50 employees are 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.
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.
State laws. Most states have passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Many state legislatures have moved to allow working mothers to breastfeed their children and/or to express milk during working hours. Some state laws require that employers provide reasonable time for an employee to breastfeed or express breast milk, or to coordinate designated break times to coincide with the employee's need to breastfeed or express breast milk.
Please see the state Maternity and Pregnancy section.
Policies for breastfeeding and expressing breast milk. In order to encourage employees to take advantage of the many health benefits of breastfeeding, employers should create a written policy on breastfeeding and expressing breast milk in the workplace. The policy should include elements such as flexible work schedules to provide time for expressing milk and the provision of an accessible location allowing privacy (e.g., a lock on the door).
Amenities for a lactation break room. 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, DOL says 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, says DOL, 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, DOL says 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 rather than use a pump with battery power. DOL recognizes that there are a range of additional features that some employers have included when providing spaces for their employees to use to express breast milk, such as sinks within or nearby the room for washing hands and cleaning pump attachments, and refrigerators within or nearby the room for storing expressed milk. While such additional features are not required, says DOL, their provision 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.
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. Under the ADAAA, the question of whether an individual's impairment is a covered disability should not demand extensive analysis and that the definition of disability should be construed in favor of broad coverage. Under the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting.
Before the enactment of the ADAAA, some courts held that medical conditions related to pregnancy generally were not impairments within the meaning of the ADA and so could not be disabilities. Although pregnancy itself is not an impairment within the meaning of the ADA and, thus, is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Under the amended ADA, it is likely that a number of pregnancy-related impairments, as well as impairments of the reproductive system that make pregnancy more difficult and that impose work-related restrictions, will be substantially limiting, even though they are only temporary.
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).
Please see the national Disabilities, national Leave of Absence sections.
Please see the state Leave of Absence section.
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.
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 in its 2015 guidance 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.
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. An employer may only reassign a pregnant worker based on concerns about her health or the health of her fetus if it can establish that nonpregnancy or nonfertility is a BFOQ--an exception that applies in very few, if any, situations, according to EEOC’s 2015Enforcement Guidance on Pregnancy Discrimination and Related Issues.
The HIPAA Privacy Rule protects the privacy of an individual's protected health information (PHI). In order to determine whether an applicant or employee has a protected disability, can perform his or her job functions, or is requesting an accommodation for a disability, an employer may need access to PHI. In order to comply with the HIPAA Privacy Rule, an employer should supply the applicant or employee with an authorization form to fill out to give to the provider once a request for an accommodation has been made. A refusal to sign the release form indicates noncooperation to achieve a reasonable accommodation. Please see the national Health Information Privacy section.
Employers should have the same leave and reinstatement policies for pregnancy-related absences as they do for other temporary disabilities. It is usually wise to be quite specific when it comes to the details of a leave of absence policy (including leave for maternity and pregnancy). An employee's extended absence from work can cause considerable hardship to coworkers and supervisors and therefore should be governed by clearly defined rules. Please see the national Leave of Absence section.
The U.S. Supreme Court has ruled that the Fourteenth Amendment of the U.S. Constitution requires states to license same-sex marriages and to recognize a same-sex marriage that is legally entered into in another jurisdiction (Obergefell v. Hodges, No. 14-556 (June 26, 2015)). The Court’s decision makes same-sex marriage lawful in all states, nationwide. As a result, employees in same-sex marriages have the same rights to leave and other benefits as do opposite-sex married employees.
For additional information on the PDA, contact the EEOC at:
EEOC
1801 L Street, NW
Washington, DC 20507
800-669-4000
Last reviewed July 2015.
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National
What laws protect pregnant employees? The Pregnancy Discrimination Act (PDA) protects the pregnant employee from discriminatory actions that are based on her pregnant status. It applies to employers with 15 or more employees. In addition, the Family and Medical Leave Act (FMLA) protects the leave rights of pregnant employees and applies if there are 50 or more employees in the workplace. Some pregnant employees may be eligible for protection under the Americans with Disabilities Act (ADA)..
The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are 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. Various other laws protect the pregnant employee, including the FMLA, and the Health Insurance Portability and Accountability Act (HIPAA), and in some cases, the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA)where pregnancy-related complications qualify as a disability.
The PDA amended Title VII of the Civil Rights Act in 1978. The PDA defines discrimination because of sex to include discrimination because of or on the basis of pregnancy. As with other claims of discrimination under Title VII, an employer will be found to have discriminated on the basis of pregnancy if an employee's pregnancy, childbirth, or related medical condition was all or part of the motivation for an employment decision.
Intentional discrimination under the PDA can be proven using any of the types of evidence used in other sex discrimination cases. Discriminatory motive may be established directly, or it can be inferred from the surrounding facts and circumstances. The PDA further provides that discrimination based on pregnancy includes failure to treat women affected by pregnancy the same for all employment related purposes as other nonpregnant employees similarly affected in their ability or inability to work. 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).
The issue of pregnancy discrimination and accommodation has been addressed by the U.S. Supreme Court in the Young case. The question before the Court was whether and under what circumstances the PDA requires an employer that provides work accommodations to nonpregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations.
The Court's decision articulated a burden-shifting analysis for discrimination under the PDA. According to the Court, an employee with a claim under the PDA may prove discrimination 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).
In Young v, UPS, the Court held that an employer’s light-duty policy can be challenged as intentional 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. In the Young case, the employer provided temporary modified work assignments only for drivers who were either injured on the job, suffered from a disability as defined by the ADA, or lost their Department of Transportation certifications. Young, a pregnant employee, was requesting light duty for her pregnancy-related lifting restriction.
It is important to note that the Court recognized that its decision is of limited significance in light of the ADAAA, which was enacted after the case began and, therefore, did not govern the case.
In July 2015, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing an employer’s obligation to accommodate pregnant employees in light of the Supreme Court’s decision in Young v. United Parcel ServiceDoc. No. 12–1226 (2015). EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Pregnancy discrimination.EEOC’s 2015 guidance makes it clear that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy ( i.e., because a woman might get pregnant), as well as medical conditions related to pregnancy or childbirth.
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 childbearing capacity, 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.
Sex-specific job restrictions can be justified only if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business. 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 implicate Title VII under 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 is gender neutral and does not violate Title VII. Title VII may be implicated by exclusions of particular treatments that apply only to one gender.
Past pregnancy.An employee or applicant may not be subjected to discrimination 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.
An employer cannot refuse to hire a woman because of her pregnancy-related condition as long as she is able to perform the major functions of her job. In addition, an employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of coworkers, clients, or customers. An 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.
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. 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.
As with other fringe benefits, employers who offer employees health insurance must include coverage of pregnancy, childbirth, and related 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.
Note: In Burwell v. Hobby Lobby Stores, Inc. 134 S.Ct. 2751 (2014), the U.S. Supreme Court ruled that the Patient Protection and Affordable Care Act's contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. Please see the national Healthcare Insurance. section.
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 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. Please see the national Disability Insurance section.
Please see the state Disability Insurance section.
No marriage requirements allowed. Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
The PDA does not require employers to provide pregnancy leave, but if an employer does have a short-term disability plan, it must be available to pregnant women just as it is to employees with other temporary disabilities. Nearly all the states have their own laws on pregnancy leave, and most of these mirror the PDA, 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.
EEOC guidelines. 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 interest. 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.
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 due to 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.
Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions, but parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends 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.
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. Please see the national Leave of Absence section.
Please see the state Leave of Absence section.
FMLA and the birth of a child. Under 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 national Leave of Absence section.
Please see the state Leave of Absence section.
State FMLA provisions. Many states have their own family and medical leave laws that are similar to the FMLA. Employers covered by the FMLA should follow its requirements with respect to pregnancy leave, unless the employer's own disability/pregnancy leave policy or the state leave law is more generous. This means that if the state has more generous provisions for additional leave than the federal law allows, the employer is required to extend additional leave to the employee as granted by those state provisions. Please see the national Leave of Absence section.
Please see the state Leave of Absence section.
When requesting medical certification of the need for FMLA leave for incapacity because of pregnancy or prenatal care, the issue of genetic conditions sometimes arises. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting genetic information or discriminating against an employee or applicant on the basis of genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, “genetic information” is defined to include information about an individual’s genetic tests, genetic tests of family members, and a disease or disorder in the family. An employer that receives genetic information in response to a request for medical information under the FMLA will be in violation of GINA unless the employer specifically directs the individual or healthcare provider not to provide genetic information (i.e., by providing the employee with a safe harbor statement accompanying the request for medical certification).
The GINA regulations provide model safe harbor language for this affirmative warning. According to the regulations, if an employer provides the safe harbor notice with the request for medical certification, any receipt of genetic information in response to the request will be considered inadvertent (and will not violate GINA). Therefore, when requesting FMLA certification, it is highly recommended that an employer provide a statement including GINA's model safe harbor language. Please see the national Disabilities (ADA), national Leave of Absence (FMLA) sections.
According to EEOC guidance, discrimination against a worker with caregiving responsibilities violates Title VII if it is based on sex and violates the ADA if it is based on a family member's disability.
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 take off a lot of time for the child's care or that the child's medical condition would impose high healthcare costs.
Section 4207 of the Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for hourly employees to express breast milk until the child's first birthday. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. The DOL states that breaks for expressing breast milk would not properly be considered FMLA or counted against the FMLA leave entitlement. The DOL encourages employers to permit nursing employees to make up unpaid break time.
Facility. Employers are 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 an employee to express breast milk.
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.
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. Therefore, 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. The analysis of reasonable time 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 to secure and store the milk. The DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express milk.
Accommodation. According to EEOC’s guidance, lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able 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 nonincapacitating medical conditions, it must also allow female employees to change their schedules or use sick leave for lactation-related needs.
Exemptions. Employers with fewer than 50 employees are 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.
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.
State laws. Most states have passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Many state legislatures have moved to allow working mothers to breastfeed their children and/or to express milk during working hours. Some state laws require that employers provide reasonable time for an employee to breastfeed or express breast milk, or to coordinate designated break times to coincide with the employee's need to breastfeed or express breast milk.
Please see the state Maternity and Pregnancy section.
Policies for breastfeeding and expressing breast milk. In order to encourage employees to take advantage of the many health benefits of breastfeeding, employers should create a written policy on breastfeeding and expressing breast milk in the workplace. The policy should include elements such as flexible work schedules to provide time for expressing milk and the provision of an accessible location allowing privacy (e.g., a lock on the door).
Amenities for a lactation break room. 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, DOL says 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, says DOL, 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, DOL says 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 rather than use a pump with battery power. DOL recognizes that there are a range of additional features that some employers have included when providing spaces for their employees to use to express breast milk, such as sinks within or nearby the room for washing hands and cleaning pump attachments, and refrigerators within or nearby the room for storing expressed milk. While such additional features are not required, says DOL, their provision 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.
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. Under the ADAAA, the question of whether an individual's impairment is a covered disability should not demand extensive analysis and that the definition of disability should be construed in favor of broad coverage. Under the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting.
Before the enactment of the ADAAA, some courts held that medical conditions related to pregnancy generally were not impairments within the meaning of the ADA and so could not be disabilities. Although pregnancy itself is not an impairment within the meaning of the ADA and, thus, is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Under the amended ADA, it is likely that a number of pregnancy-related impairments, as well as impairments of the reproductive system that make pregnancy more difficult and that impose work-related restrictions, will be substantially limiting, even though they are only temporary.
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).
Please see the national Disabilities, national Leave of Absence sections.
Please see the state Leave of Absence section.
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.
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 in its 2015 guidance 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.
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. An employer may only reassign a pregnant worker based on concerns about her health or the health of her fetus if it can establish that nonpregnancy or nonfertility is a BFOQ--an exception that applies in very few, if any, situations, according to EEOC’s 2015Enforcement Guidance on Pregnancy Discrimination and Related Issues.
The HIPAA Privacy Rule protects the privacy of an individual's protected health information (PHI). In order to determine whether an applicant or employee has a protected disability, can perform his or her job functions, or is requesting an accommodation for a disability, an employer may need access to PHI. In order to comply with the HIPAA Privacy Rule, an employer should supply the applicant or employee with an authorization form to fill out to give to the provider once a request for an accommodation has been made. A refusal to sign the release form indicates noncooperation to achieve a reasonable accommodation. Please see the national Health Information Privacy section.
Employers should have the same leave and reinstatement policies for pregnancy-related absences as they do for other temporary disabilities. It is usually wise to be quite specific when it comes to the details of a leave of absence policy (including leave for maternity and pregnancy). An employee's extended absence from work can cause considerable hardship to coworkers and supervisors and therefore should be governed by clearly defined rules. Please see the national Leave of Absence section.
The U.S. Supreme Court has ruled that the Fourteenth Amendment of the U.S. Constitution requires states to license same-sex marriages and to recognize a same-sex marriage that is legally entered into in another jurisdiction (Obergefell v. Hodges, No. 14-556 (June 26, 2015)). The Court’s decision makes same-sex marriage lawful in all states, nationwide. As a result, employees in same-sex marriages have the same rights to leave and other benefits as do opposite-sex married employees.
For additional information on the PDA, contact the EEOC at:
EEOC
1801 L Street, NW
Washington, DC 20507
800-669-4000
Last reviewed July 2015.
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