New Federal Pregnancy Accommodation Guidelines from the EEOC

Controversial new pregnancy accommodation guidelines issued by the federal EEOC on July 14, 2014 will change how many employers treat pregnant workers. Employers are required to make reasonable accommodations for more conditions, and in some cases to provide unpaid leave to pregnant women. It’s likely these regulations will continue to evolve, as the US Supreme Court, and lower courts, weigh in with opinions on individual cases.

The new guidelines expand the more generous 2008 definition of “disability” to include many conditions routinely experienced during pregnancy, including morning sickness and high blood pressure. The EEOC helpfully generated a fact sheet for small businesses that covers the highlights of the new regulations.

The Q&A sheet attached to the guidelines specifically states that unwelcome comments about pregnancy or childbirth constitute illegal pregnancy discrimination and harassment under the law. Even repeated well-meaning comments from concerned coworkers and the public can constitute pregnancy harassment. This means that the employer must limit comments by coworkers, vendors and customers, even when an employee is very visibly pregnant.

Some of the pregnancy accommodations required under the new guidelines include reassigning non-essential work duties that a pregnant employee is unable to perform, or changing the way they are performed. For example, an employer may be required to assign heavy lifting to another employee temporarily, if it is a minor portion of the job duties. An employee may be required to allow a pregnant grocery store cashier to sit at a bar stool rather than standing all day. An employer may also be required to allow a pregnant worker to take more bathroom breaks, or to sip from a water bottle even though other employees are prohibited from having water at their work station.

One of the options provided under the guidelines is that the employer may need to provide light duty or temporary reassignment to an open position, to a pregnant worker. The guidelines specifically state that an employer may need to allow a pregnant worker with morning sickness to come to work later, and stay at work later, to work the same number of hours as usual.

The new EEOC pregnancy accommodation guidelines still do not require that an employer provide any accommodation that is an undue hardship on the employer, such as paying a pregnant employee full salary to do little or no work. However, the EEOC has determined that many adjustments in working conditions will qualify as a “reasonable accommodation” under the law. This is especially true if the employer grants similar accommodations to disabled workers who are not pregnant.

As always, the EEOC provides hundreds of pages of reference material online.

In the past, employers were required to treat pregnant employees like other workers under the federal PDA, the Pregnancy Discrimination Act. It is still unlawful for an employer to discriminate against a qualified candidate or employee who happens to be pregnant, in hiring, work assignments or promotions. An employer cannot routinely require that a pregnant worker take leave if she is healthy and able to work. However, employers may be required to grant unpaid leave to an employee with a pregnancy disability. In addition, many employers will be required to alter work duties or make reasonable accommodations for many more pregnant employees, under the new guidelines.

The guidelines reiterate that paid or unpaid parental leave (distinct from medical leave for childbirth and related conditions) must be provided equally to parents of both sexes.

One of the requirements under the new guidelines is that employers regularly inform workers of their rights. Prominently displaying an updated federal labor law poster with the latest EEOC information is an excellent way to accomplish this goal.

Several cities have recently passed laws that require employers to provide more extensive accommodations, even when a pregnant employee does not reach the definition of “disabled.” These include the New York City Pregnancy Accommodation Act and the Philadelphia Pregnancy Accommodation Act.

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