On July 14, 2014, the EEOC issued three separate guidance documents discussing pregnancy discrimination and related issues, including Enforcement Guidance on Pregnancy Discrimination and Related Issues, Questions and Answers and a Fact Sheet for Small Businesses. These documents supersede prior guidance and provide the first comprehensive update on pregnant worker rights in over twenty years.
Much of the information contained in the guidance should not shock most healthcare employers. It reiterates the fundamental prohibition against discrimination on the basis of pregnancy, childbirth or related medical conditions, and it confirms that women affected by these conditions must be treated the same as other persons who are similar in their ability or inability to work. However, at the time the Pregnancy Discrimination Act was initially enacted, the Americans with Disabilities Act did not exist, and employers had no duty to accommodate workers unable to work. Even as originally enacted, the ADA did not have significant implications for pregnant workers because ordinary pregnancy was not considered to be a "disability," and temporary or minor impairments were excluded. Because most pregnancy-related complications were deemed temporary or minor and would resolve following child birth, the PDA offered little protection for pregnant workers with respect to accommodation of short-term, pregnancy-related impairments, based on the lack of any legal duty to accommodate other workers who were only temporarily impaired under the ADA.
However, the amendments to the ADA in 2009, and the accompanying regulations in 2011, vastly expanded the definition of "disability," requiring employers to reasonably accommodate workers with temporary disabilities under the ADA, thereby increasing ADA protections for short-term pregnancy complications and expanding protection to other short-term impairments. The new Guidance on Pregnancy Discrimination includes a section specifically addressing reasonable accommodation of pregnancy-related disabilities under the ADA, providing significant insight into an employer's ADA obligations with respect to the accommodation of pregnancy complications and other short-term or temporary disabilities.
As an initial matter, the new EEOC Guidance includes a laundry list of temporary, pregnancy-related impairments that may now be considered disabilities under the ADA subject to reasonable accommodation, including:
- Impairments of the reproductive system that make pregnancy more difficult and necessitate physical restrictions;
- Disorders of the uterus or cervix that may require employees to be on bed rest or deliver via cesarean section; and
- Various pregnancy-related conditions such as anemia, sciatica, carpal tunnel syndrome, gestational diabetes and depression.
The guidance also references some seemingly more common pregnancy-related conditions, such as leg swelling and nausea, as potential disabilities requiring accommodation under the ADA. While the full effect of the guidance remains to be seen, given the number of physicians who routinely advise women with otherwise uncomplicated pregnancies to avoid heavy lifting or to avoid prolonged standing to minimize swelling, it appears the EEOC may be attempting to require all pregnancy-related work limitations to be treated as disabilities despite the ADA's express exclusion of ordinary pregnancy. In any event, to the extent there was any question about an employer's duty to accommodate pregnancy-related complications or other temporary conditions under the ADA, the new guidance clarifies, "under the amended ADA, it is likely that a number of pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary."
The guidance also confirms that pregnant workers suffering from short-term impairments related to their pregnancy do, indeed, need to be accommodated in the same manner as their non-pregnant counterparts (i.e., workers temporarily limited for reasons other than pregnancy). The Guidance provides specific examples of reasonable accommodations that may be necessary for a disability caused by a pregnancy-related impairment, including:
- Redistributing marginal functions that the employee is unable to perform due to the disability;
- Altering how an essential or marginal job function is performed;
- Modifying workplace policies;
- Purchasing or modifying equipment or devices;
- Modifying work schedules;
- Granting leave in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability; and
- Temporarily assigning to light duty positions.
Impact on healthcare employers
For healthcare employers whose primary business purpose is providing safe and timely medical care often on a 24/7 basis, accommodation requests for things such as lifting restrictions, additional leave time or light duty positions can cause significant hurdles. The guidance significantly increases the number of employees who may now be eligible to request accommodation. Consider the number of obstetricians who routinely restrict pregnant patients from lifting more than 15 pounds or working (or standing) more than 8-10 hours per day for the duration of an otherwise normal pregnancy. Nurses and patient care technicians are frequently required to work 12-hour shifts and lift in excess of 25 pounds to assist with patient lifting and transport. Prior to the issuance of the guidance, neither the PDA nor the ADA required a healthcare employer to provide reasonable accommodations to a pregnant nurse or patient care technician with these restrictions unless complications existed. Workers in this situation would frequently be forced to take a leave of absence significantly sooner than anticipated and, in some cases, terminated if the employee exhausted all available leave prior to delivery. Under the guidance, however, if the healthcare employer would accommodate a disabled nurse with a 10-pound lifting restriction or 8-hour workday restriction, the same reasonable accommodation must be provided to a pregnant nurse who is similarly restricted.
One area that may prove especially problematic for a number of employers is the use of light duty positions as a reasonable accommodation. Numerous employers operate light duty programs (temporary work that is less physically demanding than ones normal duties) for workers who have been temporarily disabled on the job as a means to offset potential workers compensation liability. However, the new guidance clarifies the EEOC's stance that while workers suffering from temporary disabilities that are not job-related (including pregnancy) may be subject to the same program limitations as workers who were injured on the job, an employer must provide light duty for pregnant employees if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work.
The Supreme Court is slated to address the intersection of the PDA and ADA as it relates to the provision of light duty positions in the coming term. Until then, healthcare employers are well advised to consider requests for accommodation from pregnant workers under the same process used for requests for reasonable accommodation under the ADA and provide reasonable accommodations to enable pregnant employees to continue working, unless it poses an undue hardship or direct threat to the worker or others.