May You Require a Pregnant Employee to Take Leave?

Requiring Leave

May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?

No. 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.

Past Pregnancy

Is an employee or applicant protected from discrimination because of her past pregnancy?

Yes. 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.

Concerns About Coworkers

May an employer take an adverse action against a pregnant worker because of the views or opinions of coworkers or customers?

No. Just as an employer cannot refuse to hire or retain a pregnant woman because of its own prejudices against pregnant women, it cannot take an adverse action against a pregnant worker because of the prejudices of coworkers, clients, or customers. For instance, an employer may not place a pregnant worker who can perform her job on leave based on her coworkers’ belief that she will place additional burdens on them and interfere with their productivity.

Pregnancy Harassment

Does the PDA protect employees from harassment based on pregnancy, childbirth, or related medical conditions?

Yes. Unwelcome and offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance that is motivated by pregnancy, childbirth, or related medical conditions may constitute unlawful harassment.

Pregnancy-related Disabilities

Are pregnant employees covered under Title I of the ADA?

In some circumstances, employees with pregnancy-related impairments may be covered by the ADA. Although pregnancy itself is not an impairment within the meaning of the ADA and thus, is not a disability, pregnant workers and job applicants are not excluded from the ADA’s protections.

Pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.

Examples of pregnancy-related impairments that may substantially limit major life activities include:

• Pelvic inflammation, which may substantially limit the ability to walk;
• Pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks;
• Pregnancy-related sciatica limiting musculoskeletal functions;
• Gestational diabetes limiting endocrine function; and
• Preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.

Discrimination by Association

Does the ADA protect the parents of a newborn with a disability?

Yes. The ADA prohibits discrimination against individuals who have a known “association” with an individual with a disability. Thus, for example, an employer would violate the ADA by refusing to hire the mother or father of a newborn with a disability because it was concerned that the applicant would take a lot of time off to care for the child or that the child’s medical condition would impose high healthcare costs.

Again, readers may find the guidance and Q&A at the addresses below:

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

Question-and-Answer Document

Guidance

Pregnancy is tricky enough for HR (and for the mother), but what about when there’s a same-sex couple involved? Are your workplace policies up to date with the recent court decisions and Department of Labor (DOL) rules regarding rights for same-sex couples?

The Supreme Court DOMA decision last summer was all the talk. Then this past June, the DOL proposed an extension of FMLA protections to all eligible employees in same-sex marriages. This would enable same-sex married couples to be able to provide care to family members without fear of job loss, regardless of where they live.

HR professionals need to look beyond the headlines and the news debates. They need to develop a solid understanding of what the ruling and subsequent legal changes mean for employees, benefits management, and workplace policies.

Same-sex issues are evolving rapidly, and you need to have the most up-to-date answers to make sure you’re compliant on all kinds of things, including FMLA leave eligibility, taxes and employee benefits.

Source: HR Daily Adviser