by Jessica B. Jackler
Bryce Downey & Lenkov LLC is an IMA B2B Partner
Some say spring is the time of rebirth, which seems like a good starting point to discuss pregnancy in the workplace. As the presence of women in Corporate America continues to grow, so should your knowledge base regarding associated legal rights of your female workforce.
As a new mother, I am fortunate enough to be employed by an organization which respects my home life and the personal decisions I have made to balance my work and family. Pregnancy, however, remains a stigma in the workplace. Many employers still view pregnancy as an interruption to their operations. They believe that women who become pregnant will not want to return to work, or will not be focused enough on work if they return. This outdated mindset unfortunately remains a visible deterrent to many women in the workplace. It also is a contributing factor as to why women may not be promoted as often as their male counterparts.
After I gave birth to my son last year, I intended return to work, but I also had a goal to breastfeed for the first year of his life. I am an experienced employment lawyer, and as such, I knew my rights associated with these decisions. But, many employers and employees do not understand their obligations and/or rights.
Denying certain rights to pregnant employees (or women who intend to become pregnant) could also expose your company to liability. This article focuses on a few key legal issues of which your company should be aware to avoid possible liability.
Pregnancy Discrimination Act
The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which applies to employers with 15 or more employees. In sum, the PDA mandates that women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.
An employer cannot refuse to hire a woman because she is pregnant or because of a pregnancy-related condition as long as the applicant is able to perform the major functions of the job. The PDA also prohibits discrimination based on pregnancy when it comes to any other aspect of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits, firing, and any other term or condition of employment. It is similarly prohibited to refuse to hire an applicant, or base any employment-related decision, because of a woman is pregnant or intends to become pregnant.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. This means that an employer may not require that an employee take a leave of absence because of a pregnancy-related condition unless it is requested. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee (i.e. by providing light duty, modified job tasks, alternate assignments, or leave).
The PDA also requires that pregnant employees have equal access to health insurance and benefits. An employer’s health insurance plan must cover expenses for pregnancy-related conditions on the same basis as expenses for other medical conditions. While insurance coverage for expenses arising from abortion is not required under the Act, there is an exception where the life of the mother is endangered or medical complications arise from an abortion.
If an employer provides any benefits to employees while on medical leave, the employer must similarly provide the same benefits for those on medical leave for pregnancy-related conditions.
Under federal law, there is no mandatory paid leave available to pregnant workers. The Family and Medical Leave Act (FMLA) of 1993, provides 12 weeks of unpaid leave to be used for the birth of a new child, including prenatal care and incapacity related to pregnancy, and for the mother’s own serious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth).
The FMLA applies to private employers that have employed at least 50 employees during 20 or more calendar weeks during the current or preceding calendar year.
When an employee returns from FMLA leave, she must be restored to the same job or to an “equivalent job”. The employee is not guaranteed the actual job held prior to the leave. An equivalent job means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.
For those employers not covered by the FMLA, you may want to consider providing similar leave to your pregnant employees. It is important to remember that there are great physical consequences to giving birth. Many women who return to work before they are physically (and emotionally) ready may experience harmful effects. Even for those who return after 12 weeks, their bodies may not yet have fully recovered, nor do they sleep through the night. Employers may want to consider these factors before taking a hardline approach to maternity leave.
Breastfeeding/Lactation under Federal Law
Since 2010 under the Affordable Care Act (ACA), federal law has required certain employers to provide break time and a place for employees to express breast milk at work (pumping). The federal law provides that employees who work for employers covered by the Fair Labor Standards Act (FLSA) and are not exempt from section 7, which sets forth the FLSA’s overtime pay requirements, are entitled to pumping breaks. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of section 7, they may be obligated to provide such breaks under State laws. The Department of Labor, however, encourages employers to provide breaks to all nursing mothers regardless of their status under the FLSA.
The law states that employers must provide a “reasonable” amount of time and that they must provide a private space other than a bathroom. They are required to provide this until the employee’s baby turns one year old.
The designated space must be completely private so that no one can see inside the space and no one is able to enter the space while it is being used. It also must be “functional [useable] as a space for expressing breast milk.” Some considerations may be whether there are working electrical outlets for pumps, a table on which to place the pumping equipment, a chair, etc.
Employers are not required to create a permanent dedicated space for breastfeeding employees. For many employees who have a private office, such a space is ideal for pumping. For employees who do not have their own private office or dedicated pumping room, providing access to a conference room or manager’s office are alternatives.
Under the ACA, an employer shall not be required to compensate an employee receiving reasonable break time for pumping. However, if the employer offers paid breaks and an employee uses that time to pump, the time should be paid in the usual way. Any extra time required to pump need not be paid.
Although it is not specifically mentioned in the ACA, storage of pumped breastmilk is a big concern for breastfeeding mothers. It is important to remember that expressed human milk is food. This “liquid gold” can be stored in a company refrigerator. The Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) do not classify human milk as a biohazard and as such, there are no health concerns associated with storage in a communal space. Under certain work conditions (e.g. in a restaurant setting), or because of an employee’s personal preference, she might instead choose to store her milk in a personal cooler with ice packs or keep a personal refrigerator in her private office.
Illinois Pregnancy Accommodation Law
On January 1, 2015, the Illinois Pregnancy Accommodation Law became effective. The law applies to every employer in the state with one or more employees and covers workers (full-time, part-time and those on probation) and applicants who are pregnant or who become pregnant.
The law requires employers to make reasonable accommodations for a pregnant employee even if her impairment does not meet the official test to be determined a “disability.” Some examples of accommodations under this state law include:
- More frequent or longer bathroom breaks;
• Breaks for increased water intake;
• Breaks for periodic rests;
• Private non-bathroom space for expressing breast milk and breastfeeding;
• Assistance with manual labor;
• Light duty;
• Temporary transfer to a less strenuous or hazardous position;
• The provision of an accessible worksite;
• Acquisition or modification of equipment;
• Job restructuring;
• A part-time or modified work schedule;
• Appropriate adjustment or modifications of examinations, training materials, or policies;
• Reassignment to a vacant position;
• Time off to recover from pregnancy; and
• Leave necessitated by pregnancy.
An employer additionally cannot force an accommodation on a pregnant employee who has not requested one. For example, an employer is prohibited from forcing a pregnant employee to take leave before she is ready.
After an employee does take leave, the law requires employers to reinstate the employee to her original job or to an equivalent position, unless the employer can demonstrate that doing so would impose an undue hardship.
Pregnancy alone is not considered a disability for purposes of the Americans with Disabilities Act (ADA). Some health conditions resulting from pregnancy, however, may be considered disabilities under the ADA. An employer therefore may be legally required to provide a reasonable accommodation for a disability related to pregnancy under the same standard as it would for any other disabled employee.
Remember, disabilities related to pregnancy are not limited to those which are physically manifested. For example, many women experience postpartum depression after giving birth, which has been considered a disability under the ADA according to case law.
Although not required by law, the implementation of flex-time schedules, especially for new mothers, has been a popular alternative to the traditional 9-5 schedule. Flex schedules may allow workers to adjust their start and finish times, work remotely, or work on a part-time basis.
The FMLA is the only current federal law which provides leave to mothers (and does not even apply to employers with less than 50 employees). Under the FMLA, new mothers are required to return to work after a mere 12 weeks of (unpaid) leave. For many women, this concept is difficult to accept when facing the prospect of returning to work full-time shortly after childbirth.
Flex schedules are becoming increasingly attractive for many reasons, including softening the physical and emotional tolls associated with childbirth. Employers who are open to this concept may find that employees who are on flex schedules are just as productive, if not more productive, than employees working traditional schedules.
Flex schedules, based on my own experience, also can increase morale. Knowing that I have a couple days a week to be home with my son has greatly impacted my positivity while in the office. It also makes me appreciate my employer that much more for affording me with the opportunity to work a flex schedule. These factors are important to consider when employers seek to retain a strong female workforce.
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