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Accommodating Pregnant Employees

Posted by Jack Wilkinson on Wed, Mar 15, 2017 @ 08:28 AM

Pregnant

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Let’s imagine a situation. Wendy, who’s been on the job for only four months, informs her employer that she’s pregnant. She requests light duty and asks if temporary leave is an option.

Instead of accommodating Wendy, the employer terminates her employment, explaining to her that her employment is at-will and that they don’t have the staff to modify her duties or cover her responsibilities while she’s away on leave. They remind her that during her job interview, they asked if she had plans to become pregnant and she had said no.

Then her manager makes a point of highlighting instances in which her job performance was less than satisfactory – an assessment they had not, up till then, given to her.

Was the employer right to terminate Wendy’s employment?

Her employment was at-will, but we should remember that at-will employment has limits. There are illegal reasons for firing someone, and pregnancy is one of them. Pregnancy discrimination includes pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. And the Pregnancy Discrimination Act (PDA) prohibits discrimination and harassment based on pregnancy when it comes to any aspect of employment – hiring, termination, layoff, pay, benefits, and any other term or condition of employment.

Therefore, the decision to terminate Wendy’s employment was a highly risky move. Wendy could claim that she was illegally discriminated against. Her employer would have a difficult time arguing that the termination was for cause – i.e., her poor performance – when they hadn’t documented the instances of unsatisfactory performance or given her any opportunity to improve.

Refusing leave or light duty was also potentially risky. If Wendy was temporarily unable to perform her job due to a medical condition related to her pregnancy, then her employer, under the PDA, must treat her the same way it treats any other temporarily disabled employee. If Wendy’s employer had previously made accommodations for other temporality disabled employees, then refusing accommodations to Wendy would be discriminatory.

Other laws may also come into play. Some impairments related to pregnancy may be disabilities under the Americans with Disabilities Act. The Family and Medical Leave Act provides protected leave for some employees incapacitated due to pregnancy, prenatal medical conditions, or childbirth. State laws may apply here as well. California and Maryland, for example, have pregnancy disability leave laws.

The takeaways: Pregnancy is a protected class under state and federal law. It’s a good idea to know what those laws require and whether they apply to your business.

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