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NATALIE’S PREGNANT -- NOW WHAT? The Law of Pregnancy in the Workplace – It May Not Be What You Think

Natalie Romero is pregnant.  She’s one of your best riggers, a working foreman on whom you’ve come to rely to get the job done right, safely, and on time.  And now she says she’s expecting.  So once you get past the congratulations, what’s next?

For starters, nothing.  At least as far as making any changes at work is concerned.  The federal Pregnancy Discrimination Act (which applies to employers with fifteen or more employees) prohibits your treating pregnant workers any different than similarly-situated employees who aren’t pregnant.  The obvious effect of that legal requirement is that you cannot take any adverse action against Natalie because of her pregnancy.  She keeps her job and doesn’t see any cutback in her wages, hours, duties, workplace benefits or opportunities, and the like—unless she wants them.  The other side of that coin is that Natalie doesn’t get any additional rights in the workplace solely because of her being pregnant.  No additional time off, no entitlement to light duty, and no other perks at work—unless you want to give them to her.  Basically, the law expects both you and Natalie to continue doing business the same way each of you would have if she wasn’t pregnant at all.

The best way to approach workplace decisions concerning pregnant workers is to ask yourself what you would do for someone with a temporary disability or medical condition resulting from some off-duty activity.  If you’d accommodate that other employee at work, then you need to do the same for a pregnant worker too.  For example, if you would temporarily reassign someone to light duty if he broke his leg skiing over the weekend, then you ought to do the same for a pregnant worker who also requests light duty as a result of physical limitations arising from her pregnancy.  In short, you need to treat likes alike.  That’s all the law expects.

So what happens if Natalie asks for a later start time owing to morning sickness, or presents you with a doctor’s note imposing a 10-pound lifting restriction?  It depends.  Again, the analysis revolves around what you’d do for someone else with a non-work-related physical or medical condition that leads to the same sort of requests.  The law wants you to treat Natalie the same as you would if she wasn’t pregnant—no better, and no worse.  That’s the basic scheme in a nutshell.  And, because of that, the law also prohibits you from making paternalistic decisions about what you think would be best for Natalie and her unborn child.  Hence, you don’t get to reassign her to different, less-demanding, or less-hazardous work out of concern for her or her baby’s welfare . . . at least not unless Natalie wants it—those are decisions for her and her alone.

Now, because this is the law we’re talking about, nothing is ever as simple as it seems.  First, several states require employers to make reasonable accommodations for pregnant workers, similar to what the law expects for someone with a qualifying disability under the Americans With Disabilities Act (ADA).  Virginia is not one of them.  However, Association employers who have workers assigned to jobs outside of the Commonwealth would do well to check the law of those other states where their employees are working.  Second, while the Pregnancy Discrimination Act’s protections end with the baby’s delivery (at which point the time off provisions of the Family and Medical Leave Act kick in, for qualifying employees of employers with 50 or more workers), a relatively recent amendment to the federal Fair Labor Standards Act requires employers to make certain workplace accommodations for breast-feeding new mothers.  Third, last year the Equal Employment Opportunity Commission (EEOC) issued its first comprehensive enforcement guidance on pregnancy discrimination in more than thirty years.  While that fifty-page document stops short of saying that pregnancy itself is a disability triggering an employer’s accommodation requirement under the ADA, it certainly suggests that anything other than a normal, trouble-free pregnancy might be.  And while the EEOC doesn’t make the law, the fact that it effectively is the cop on the beat enforcing the law as it sees it means that employers ignore its pronouncements at their peril. 

Finally, this spring the U.S. Supreme Court is going to rule on a Pregnancy Discrimination Act case, Young v. United Parcel Service, Inc.  What the nation’s highest court will decide is whether an employer has to offer pregnant employees the same sort of workplace accommodations it offers workers who suffer on-the-job injuries or who have a qualifying disability under the ADA.  The Fourth Circuit (in which we are located) ruled that an employer does not have to do so—reasoning that ADA disabled workers and those injured at work are not “similarly situated” to a worker who is pregnant.  Soon enough, we’ll see if the Supreme Court agrees. 

As for Natalie and what her future looks like, the basic rule remains:  she’s entitled to be treated the same way at work as she was before she made her big announcement . . . the same way you’d treat any other non-pregnant good worker just like her.  If you need additional guidance on what that should look like, then it’s time to check with your company’s human resources professionals or (here it comes) consult qualified counsel.

About the Author

Chris Abel is an employment law lawyer with Willcox & Savage, PC.  He also is an adjunct professor of law at William & Mary’s Law School.  Chris chairs VSRA’s Human Resources Committee.


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