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Accommodation Ideas for Employees who are Pregnant

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Introduction

JAN’s Accommodation and Compliance Series is designed to help employers determine effective accommodations and comply with Title I of the Americans with Disabilities Act (ADA). Each publication in the series addresses a specific medical condition and provides information about the condition, ADA information, accommodation ideas, and resources for additional information.

The Accommodation and Compliance Series is a starting point in the accommodation process and may not address every situation. Accommodations should be made on a case by case basis, considering each employee’s individual limitations and accommodation needs. Employers are encouraged to contact JAN to discuss specific situations in more detail.

For information on assistive technology and other accommodation ideas, visit JAN's Searchable Online Accommodation Resource (SOAR) at http://AskJAN.org/soar.

Information about Pregnancy and Work

Women today are more likely to work while pregnant. Data collected by the Pew Research Center indicates that not only are a higher share of women who are pregnant continuing to work, but also are working longer into their pregnancies and returning to work much sooner after (Pew Research Center, 2015). While pregnancy can be a joyous and exciting time, it can also present challenges at work for some women who experience limitations or complications associated with pregnancy. As a result, women who continue working during pregnancy may require job accommodations during and after pregnancy.

Pregnancy affects women in different ways. Some women experience no, or very few, limitations affecting their ability to work. Others may experience limitations that lead to the need for accommodations. For example, fatigue, sickness, or pain may impact attendance; restrictions in lifting, standing, or bending may affect ability to meet the physical demands of a job; or the need to eat and drink frequently, or wear more comfortable clothing may affect adherence to certain policies. Limitations can sometimes result from pregnancy-related complications, like gestational diabetes, back pain, high blood pressure (known as preeclampsia), urinary tract infections, severe dehydration, and depression. Also, pregnancy and childbirth may exacerbate existing medical impairments.

Pregnancy-related Workplace Legislation

Does federal law require employers to make accommodations for pregnant workers?

Yes. There are two federal laws that may require an employer to accommodate a pregnant worker: the Pregnancy Discrimination Act (PDA), and the Americans with Disabilities Act (ADA).

What does the Pregnancy Discrimination Act require?

The PDA is a federal statute that protects pregnant workers and requires covered employers to make job-related modifications for pregnant employees. The PDA forbids employment discrimination based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. The law requires employers to treat a pregnant employee who is temporarily unable to perform, or is limited in performing, the functions of her job because of pregnancy, childbirth, or a related medical condition in the same manner as it treats other employees who are similar in their ability or inability to work (EEOC, 2015).

Under the PDA, a covered employer is responsible for making job-related modifications (or accommodations) for pregnant workers when the employer does so for other employees who are similarly limited in their ability to perform job functions. A change in duties can include, for example, light duty, alternative assignments, additional breaks, or unpaid leave. For example, an employer with a policy of accommodating most non-pregnant employees with lifting limitations would be required to also accommodate pregnant employees with lifting limitations.

What does the Americans with Disabilities Act require?

The ADA requires employers to provide reasonable accommodations to employees with disabilities, so long as doing so does not impose an undue hardship on the employer. Although pregnancy alone is not a disability under the ADA, many pregnancy-related conditions are disabilities that an employer may have to accommodate under the ADA.

To have a disability under the ADA, an individual must have an impairment that substantially limits one or more major life activities. Changes in the interpretation of the definition of the term “disability” resulting from enactment of the ADA Amendments Act (ADAAA) make it easier for employees who have pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation (EEOC, 2015). For example, the following pregnancy-related conditions may be disabilities under the ADA: anemia, sciatica, gestational diabetes, preeclampsia, morning sickness, swelling in the legs, depression, or other impairments that substantially limit a major life activity or the normal functioning of a bodily system.

Accommodations can include a modified schedule, ability to have snacks or drinks at a workstation, a modified attendance policy, frequent breaks, sitting, light duty, or leave, among other solutions.

Are there state laws that require employers to accommodate pregnant workers?

Yes. Various state and local laws provide protections against pregnancy discrimination, accommodation requirements, and leave rights for pregnant workers. Such state and local laws go above and beyond the requirements of federal law. For example, some states have enacted laws that expressly require covered employers to provide reasonable accommodations to employees who have work-related limitations due to pregnancy, childbirth, or related conditions, typically so long as such accommodations can be provided without undue hardship to the employer. Many states have enacted pregnancy-related legislation in response to the lack of clear federal mandates to provide accommodations for pregnant workers. Employers should be prepared to comply with state and local laws that offer broader protections than federal laws. The U.S. Department of Labor (DOL) maintains an interactive map that offers information about state-level employment protections for workers who are pregnant or nursing. To access this information, visit http://www.dol.gov/wb/maps.

Is light duty required for pregnant workers?

Under federal law, an employer must treat women affected by pregnancy, childbirth, or related medical conditions the same as other employees who are similar in their ability or inability to work with respect to light duty. If light duty is provided to other employees who are similar in their ability or inability to work (e.g., those injured on the job), an employer may have to provide temporary light duty to an employee due to pregnancy. An employer that provides light duty to other employees cannot justify denying it to a pregnant worker just because it would be more expensive or less convenient to do so. Additionally, light duty may be an appropriate reasonable accommodation for individuals with pregnancy-related disabilities under the ADA.

For more information, see the EEOC's Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues at http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

Can an employer require a pregnant worker to take leave even if she can perform job functions with or without accommodation?

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 duties. If an employee is limited in performing job duties and is entitled to an accommodation under the PDA or ADA (see above), reasonable accommodations may need to be provided to help her perform job duties. Requiring an employee to take leave against her wishes 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 (EEOC, 2015).

Are employers required to provide leave for employees who are pregnant and/or for new parents?

The Family and Medical Leave Act (FMLA) gives those who qualify the right to use up to twelve weeks of unpaid leave for prenatal medical appointments, morning sickness, pregnancy-related conditions, childbirth, and for bonding with new children (men are entitled to bonding leave too). State and local laws may provide additional leave or cover individuals who are not covered by the FMLA. 
Federal law does not mandate any form of paid leave, though some employers do offer paid leave, and some states provide temporary, partial income replacement during periods of pregnancy leave or parental leave.

For information regarding the FMLA, contact the U.S. Department of Labor, Wage & Hour Division at 866-487-9243 or visit http://www.dol.gov/whd/fmla/index.htm.

Are employers required to accommodate nursing mothers?

The Patient Protection and Affordable Care Act amended section 7 of the Fair Labor Standards Act (FLSA) to require covered employers to make certain accommodations for nursing mothers who are covered by the law’s protections (employees are covered if they are entitled to receive overtime under the FLSA). Employers are required to provide such employees:

For additional guidance on the Patient Protection and Affordable Care Act, see the U. S. Department of Labor, Wage & Hour Division, Break Time for Nursing Mothers website at http://www.dol.gov/whd/nursingmothers.

Additionally, the PDA and Title VII of the Civil Rights Act of 1964 requires employers to accommodate nursing mothers under certain circumstances. Under the PDA, an employee must have the same freedom to address lactation-related needs that she and her co-workers 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. (EEOC, 2015).

* Thank you to Liz Morris, Deputy Director and Professor at the Center for WorkLife Law, University of California, Hastings College of the Law, who provided insight and expertise that contributed to the development of the pregnancy-related workplace legislation section of this document.

Accommodating Employees who are Pregnant or Nursing

The following is an overview of some of the accommodations that might be useful for employees who are pregnant or nursing.  For a more in depth discussion, access JAN's publications at http://AskJAN.org/media/atoz.htm. To discuss an accommodation situation with a consultant, contact JAN directly. 

Nausea and Vomiting: Nausea and vomiting symptoms commonly occur in early pregnancy, during the first trimester, but some women can be affected by varying degrees of severity of these symptoms throughout their entire pregnancy.

Fatigue: Fatigue is particularly common during the first and last trimesters of pregnancy. However, some women will experience fatigue throughout pregnancy.

Restroom Use: Workers who are pregnant may need to use the restroom more frequently.

Parking/Walking: Workers who are pregnant may have difficulty walking long distances. Parking or mobility-related accommodations may be needed to provide easier access to the workplace.

Attendance: Attendance can be impacted during pregnancy for a number of reasons, including nausea, fatigue, pregnancy-related impairments, and medical appointments. Often, all that is needed is some flexibility with work schedule and where work is performed.

Ergonomics: Workers who are pregnant may require ergonomic modifications to enhance productivity and reduce the impact of pregnancy-related impairments and limitations, like carpal tunnel syndrome or back pain.

Lifting/Bending/Twisting/Reaching/Pushing/Pulling: Workers who are pregnant can be limited in their ability to lift, bend, twist, reach, push, or pull. Not all workers will be limited in the same way. A lifting restriction of 25-30 lbs. is common during pregnancy. When necessary, the worker’s healthcare provider can provide information regarding specific limitations and restrictions. JAN can offer specific accommodation solutions based on the industry and job tasks involved. Here are some general ideas:

Sitting: Sitting for long periods of time can affect circulation and cause pain and discomfort.

Standing: Standing for long periods of time can lead to fatigue and cause pain and discomfort.

Temperature Sensitivity: Workers who are pregnant can be sensitive to hot and cold temperatures.

Depression, Handling Stress and Emotions: Everyone handles stress and emotions in different ways. Managing stress at work can help reduce emotional discomfort.

Traveling/Driving: Driving and or traveling long distances may be limited due to pregnancy. The individual’s healthcare provider should be consulted regarding any specific limitations.

Working Around/With Toxic Substances: Pregnant workers may be limited in their ability to work around heavy metals like lead and mercury, chemicals such as organic solvents, certain biologic agents, and radiation. Exposures can happen through inhaling substances, absorption through skin, or ingestion.

Nursing/Pumping: A new mother who nurses her baby will need to either take time to nurse, or make time to pump breast milk while at work.

Resources

References

Pew Research Center. (2015). Working while pregnant is much more common than it used to be. Retrieved November 2015 from http://www.pewresearch.org/fact-tank/2015/03/31/working-while-pregnant-is-much-more-common-than-it-used-to-be

Equal Employment Opportunity Commission (EEOC). (2015). Enforcement Guidance on Pregnancy Discrimination and Related Issues. Retrieved October 2015 from http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

Equal Employment Opportunity Commission (EEOC). (2015). Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues. Retrieved October 2015 from http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm

Updated 01/12/2016

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