Last month, the Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance (“Guidance”) on pregnancy discrimination in the workplace and related issues. In its first update in over thirty (30) years, the Commission clarified how Title VII and the Americans with Disabilities Act (“ADA”) interact to protect pregnant employees. If you are an employer in California, you may be thinking, “Great. Another change in the law and now I am stuck with trying to figure out how these changes apply to my business. Now what do I need to do to make sure the policies and procedures in our handbook are up to date?”
The new guidelines prohibit employers from forcing pregnant workers to take leave and acknowledge that “employers may have to provide light duty for pregnant workers.” After childbirth, lactation is now covered as a pregnancy-related medical condition.
Also, it’s not just women who will benefit. The guidelines say that when it comes to parental leave, “similarly situated” men and women must be treated on the same terms.
Here are some tips to consider when reviewing and updating your handbooks:
(1) Health Insurance Benefit Plan
Does your health insurance benefit plan cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy? If not, you should look into updating your plan. For example, if your health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also should be covered.
When in doubt just use the following as your bottom line: Your health insurance plan should apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy.
(2) Reasonable Accommodations for Pregnancy-Related Conditions
Has your pregnant employee requested a reasonable accommodation? While pregnancy is not a disability, many common pregnancy-related impairments such as cervical insufficiency, preeclampsia, pregnancy-related anemia, sciatica and carpal tunnel syndrome, gestational diabetes, nausea that can cause severe dehydration, abnormal heart rhythms, swelling, depression, complications requiring bed rest and the after-effects of a delivery may constitute disabilities that require reasonable accommodation.
If, for example, you provide light-duty work as a benefit to non-pregnant employees with back pain resulting from injury, you should make sure that your policies also allow for light duty work for similarly situated pregnant employees. Examples of other reasonable accommodations that may be necessary for a pregnancy-related disability include modified work schedules and granting leave.
Other than Pregnancy Disability Leave (“PDL”), what types of leave should you be prepared to provide?
First of all, it is critical to note that you cannot force an employee to take PDL. As long as the employee can still perform the essential functions of her job with a reasonable accommodation, you may not force her to go on leave before she and her healthcare provider request it. However, once the leave is requested, be mindful that PDL is not the only leave you are required to offer. Here are a few other types of leave that you want to be aware of:
Although leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions, if you have a policy that provides parental leave, it must be provided to similarly situated men and women on the same terms.
Baby Bonding Leave
If you are an employer covered by the Family and Medical Leave Act (“FMLA”), you must provide eligible employees with up to 12 weeks of job-protected leave to care for and bond with a newborn baby or a recently adopted child.
As a California employer, keep in mind that a woman who is eligible, could take up to four months of PDL for her pregnancy disability and could also be entitled to up to 12 weeks of California Family Rights Act (“CFRA”) leave to bond with the baby, or for another CFRA qualifying event such as to bond with an adopted child, or to care for a parent, spouse or child with a serious health condition. However, note that FMLA leave runs concurrently with, and is not in addition to, the leave entitlements provided by CFRA leave.
Using Paid Leave to Cover the Unpaid Portion of PDL
You or your employee may choose to use the employee’s paid sick leave during the otherwise unpaid portion of her PDL. However, only an employee can decide to use her vacation or personal time off during her PDL in order to receive compensation during the otherwise unpaid portion of her PDL; an employer cannot require her to do so. Extending the four-month PDL by adding sick leave is at the discretion of the employer. Such requests should be answered in the same manner as similar requests for non-pregnant employees.
“Do you have a policy and procedure in place to provide reasonable break time and a private non-bathroom place for employees who are nursing?” If not, you should update your policies and procedures. In addition to being protected under the Pregnancy Disability Act, female hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private place for breastfeeding employees to express milk.
Employers with fewer than 50 employees are not subject to this requirement if it “would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business.” The Department of Labor has published a Fact Sheet providing general information on the break time requirement for nursing mothers. The Fact Sheet can be found at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.
Other issues to consider include (i) an employer may risk discrimination claims merely by discussing pregnancy plans with job applicants and employees; (ii) the anti-discrimination law covers not only active pregnancy but also discrimination based upon past pregnancy and a woman’s potential to become pregnant; and (iii) under the ADAAA, most pregnancy-related impairments are disabilities regardless of how temporary they may be.
The Guidance is extensive and much more detailed than this article. As an employer, you are encouraged to review the Guidance (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#state) and/or the shorter “Q&A” document issued by the EEOC (http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm) to determine whether your current policies and practices are in compliance. Consult counsel when uncertain about your obligations or best practices.
And one final thing – be mindful that the EEOC’s Guidance is a drastic change from several federal laws previously interpreted by the federal courts. As such, employers should be aware that these changes could be short-lived.