HR Managers: How Well Do You Understand the Pregnancy Discrimination Act?

March 21st, 2017 by

The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964, a federal discrimination law. Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

At CAI, we receive over 7,000 calls annually from our North Carolina members on a wide variety of HR compliance and workplace issues. Here are a few situations that employers may face when complying with the PDA.

Q. My employee has had several absences due to an illness unrelated to her pregnancy.  Recently, pregnancy complications kept her out of work an additional two days.  Can I discipline or discharge her according to our attendance policy?

A: In this case, be sure that you are following the same policy for all employees. Would you typically terminate or discipline at that level of attendance? Also, be sure to think through ADA or FMLA (if applicable) coverage if her illnesses or complications might qualify.

Q. I have a visibly pregnant applicant applying for one of our busiest jobs. We can’t take the risk of her needing to be out to go on maternity leave so we decide not to offer her the job, even though she is the most qualified. Is this ok?

A: No. This would be a direct violation of the PDA

Q. Our leave policy provides for four weeks of leave for employees that have worked less than a year.  Our employee has only worked with us for 6 months and did not return to work after her four weeks of leave. Are we ok to discharge?

A: If you are treating the pregnant employee in accordance with your other leave policies and treat all employees the same, regardless of their medical condition, you should be fine. Again, you may want to ensure that there are no ADA/FMLA implications.

Q. My pregnant employee has been given a lifting restriction of 25 lbs. Her job requires her to be able to lift up to 50 lbs.  We do not allow for light duty other than Workers Compensation situations.  Do we have to accommodate this employee’s light duty request?

A: Yes.  If you have policies that allow for light duty for employees who are injured on the job (or ADA accommodation) you must treat your pregnant employee with the same accommodations/allowances. In this example, because you allow for light duty for WC situations, we would recommend that you allow your pregnant employee to continue with light duty.

Q. My employee is pregnant and I feel like she shouldn’t be lifting our boxes and placing them on the shelves. I think I may switch her to another duty to help her out, would this be ok?

A. If your employee hasn’t requested accommodation or light duty and hasn’t been placed on restriction from her doctor, do not make an automatic inference on what would be best for her in her job. You may however, engage your employee in a conversation to discuss your concern and to obtain her perspective.  As a result, you may both reach the conclusion that a reassignment is appropriate.  Should this be the case you will want to document your conversation including a written acknowledgment from the employee.  An employer may, of course, 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.

Q. My employee is pregnant and hasn’t been placed on restriction by her doctor or requested duty accommodation, however, our jobs require a lot of standing, bending and lifting. Can I force my employee to go on leave at this time?

A. No. The PDA specifically addresses Forced Leave.  An employer can not force an employee to take leave because they are pregnant. On the other hand,  you 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 could not fire a pregnant employee for being absent if her absence fell within the provisions of the employer’s sick leave policy. An employer may not require employees disabled by pregnancy or related medical conditions to exhaust their sick leave before using other types of accrued leave if it does not impose the same requirement on employees who seek leave for other medical conditions. Similarly, an employer may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave. Title VII does not, however, require an employer to grant pregnancy-related medical leave or parental leave or to treat pregnancy-related absences more favorably than absences for other medical conditions.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills.

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