Does Pregnancy Count as a Disability? | DCR Workforce Blog

Does Pregnancy Count as a Disability?

Sam Levenson had famously said ‘Somewhere on this globe, every ten seconds, there is a woman giving birth to a child. She must be found and stopped.’ It appears that some employers are applying this advice to their pregnant employees’ tenure with them and getting into legal wrangles by demoting the women or firing them from work. Other acts of discrimination include decreased hours, forced unpaid leave etc. The EEOC is committed to prevent such discrimination and ensure that employers do not make fundamental mistakes in following the combined directives of the Pregnancy Discrimination Act, and the ADA and FMLA. All the laws together are generally blamed for creating uncertainty and confusion in the minds of employers.

Consider that paid maternity leave ranges from 14 weeks to 18 months across the countries of the world. But the maternity leave offered to women, who make up 57% of the total workforce in the USA is mostly unpaid.  Many low income women, being single mothers or sole breadwinners, prefer to work till the date of delivery to ensure an income and also save the maximum free time for recuperation and to bond with the baby. Since low income jobs are usually physically demanding, a reasonable accommodation in the duties may be required by such women. Some minimal needs of pregnant women would be more restroom breaks, opportunity to sit down if required to stand for long periods, limited heavy lifting and less exposure to hazards.

What the Law Says

According to law, pregnancy is a temporarily disabling condition and deserves some entitlements and job protection clauses. Other legal requirements covering the treatment of pregnant employees by employers are enumerated below:

  • An employer cannot treat pregnant employees differently from similarly situated non-pregnant employees (with other medical conditions requiring accommodation).
    • Employers are required to provide light duty, alternative assignments, disability leave or unpaid leave same as they would to a disabled employee. Refusal to do so would be illegal, as in the case of Peggy Young who worked with UPS, when her request for lighter duty in view of her condition on medical advice, was denied.
    • Employers shall treat absences due to pregnancy the same as it treats absences due to any other medical condition like a broken hand.
  • Impairments resulting from pregnancy (for example, gestational diabetes or pre-eclampsia) may be disabilities under the Americans with Disabilities Act (ADA).
  • Employer’s policy governs the duration of leave time, whether it is paid or unpaid, and a verification of the details of medical opinion which recommended such leave.
  • No assumptions can be made about the pregnant person’s capabilities, work standards, attendance etc going by stereotyped negative assumptions of how such employees are expected to behave.
  • No derogatory comments or jokes about the condition are allowed. The recent award of $148,000 to an employee of HCS Medical Staffing, a Milwaukee healthcare staffing firm, involved damages for allegedly offensive comments and dismissal from work by the owner.
  • Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
  • An employer cannot base employment decisions on the fact that a worker is pregnant.
  • The clock continues to tick through breaks due to pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth.

The FMLA allows a new parent (including foster and adoptive parents) 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) to use for care of the new child provided the employee has worked for the employer for 12 months prior to taking the leave and the employer has a specified number of employees.

EEOC’s 4 year Strategic Plan

The cases of discrimination filed by pregnant workers have been showing a steady rise and interaction with the public has clearly indicated to the EEOC that most employers lack adequate understanding of the ways in which an employer is required to support pregnant employees to ensure that they have not violated the law. To this end, the EEOC has put together a plan to combat such work place discrimination, including pregnancy from 2012 -16.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.