When a worker becomes pregnant, employers have certain obligations. Employers must avoid discrimination, harassment and retaliation against employees and applicants based on pregnancy, perceived pregnancy, childbirth, breastfeeding and related medical conditions.
Employers must also provide reasonable accommodation or transfer for an employee “affected by pregnancy”. An employee may be “affected” by pregnancy without actually being “disabled” by the pregnancy. An employee is affected by pregnancy if, due to a condition related to pregnancy, childbirth, or a related medical condition, it is medically advisable for an employee to transfer or otherwise be reasonably accommodated by the employer.
What accommodations should an employer consider?
Some possible accommodations an employer should be prepared to consider include:
- Allowing the employee to sit instead of standing while working
- More frequent breaks
- Working on alternate projects temporarily
- Providing unpaid medical leave
- Offering telecommuting options
- Release from any heavy lifting
- Providing job assistance equipment
- Allowing a worker to have water or snacks in certain areas
These accommodations can make it easier and safer for a pregnant worker to do her job without jeopardizing her health or her unborn child’s. An employer should not assume that changes should be made to an employee’s job just because the employee is pregnant. The employee should request an accommodation.
When do accommodations become unreasonable?
Not every accommodation request is feasible. Some requested accommodations may be unreasonable because they are excessively expensive or disrupt business operations.
For instance, having to hire new employees to perform the pregnant worker’s duties may not be a realistic solution if the employee cannot fulfill tasks essential to her role.
Even if a specific accommodation is unreasonable, employers may want to offer alternative options that are less disruptive or expensive. Whether an accommodation is reasonable is a fact-specific and individualized determination based on a variety of factors, including, but not limited to, the employee’s medical needs, the duration of the requested accommodation, the employer’s past practices, the effectiveness of the accommodation, and the impact on operations. Once an accommodation has been requested, the employer should engage in the interactive process to evaluate employee’s needs and the impact on the employer.
Other ways to protect pregnant workers’ rights
No Retaliation
Providing accommodations is just one duty employers have when complying with state and federal regulations that protect pregnant workers. The laws also prohibit retaliation and harassment targeting pregnant workers. Thus, employers must not penalize an employee for requesting a pregnancy-related accommodation or becoming pregnant. Further, should other parties bother, annoy, intimidate or demean the worker due to the pregnancy, employers must take appropriate action to investigate harassment claims and put a stop to it.
Leave of Absence
Employers with five (5) or more employees must provide up to 4 months (17 1/3 weeks) of pregnancy disability leave. The 4-month period is determined by the number of hours an employee would normally work within 4 calendar months. The leave may be taken intermittently or on a reduced scheduled basis. Not every pregnant employee is disabled for 4 months. The determination of whether the employee is disabled is made by the health care provider. The leave may be extended if Fair Employment and Housing Act disability protections apply. Covered employers must also consider additional time off for baby bonding under the California Family Rights Act following the birth of the child.
Lactation Accommodation
Employees who wish to express milk at work are entitled to accommodation in the workplace. Employers should understand their obligations to accommodate this issue in the workplace.
Pregnant workers have rights that employers must not violate on the job. Should a violation occur, the worker may pursue legal action, which can be costly for businesses to resolve. To avoid this, employers should be clear on what they must and must not do when it comes to treating pregnant workers fairly.
