After thirty years of silence, the Equal Employment Opportunity Commission (“EEOC”) issued new guidelines on pregnancy discrimination in the workplace. Enforcement Guidance: Pregnancy Discrimination and Related Issues. While the Guidance does not officially constitute law, it is instructive on how the EEOC will investigate and treat pregnancy discrimination charges.

The Guidance provides the following:

• Anti-discrimination laws protect  pregnant employees, employees who were pregnant in the past and those who may become pregnant, those who express that they may become pregnant, medical conditions associated with pregnancy, employee fertility and  childbearing capacity;
   
• Pregnant employees must be treated the same as non-pregnant employees;
   
• Accommodations provided to pregnant workers must be equal to accommodations provided to disabled non-pregnant employees, regardless of whether pregnant workers are disabled under the Americans with Disability Act (“ADA”);
   
• Pregnant employees who are not disabled under the ADA are nevertheless entitled to reasonable accommodations if they have job restrictions similar to an individual with an impairment;
   
• If an employer offers light duty work to employees who are unable to perform their normal duties because of an impairment, similar light duty work  must be provided to a pregnant employee (for example, due to a lifting restriction or discomfort standing) without making any inquiries into whether the pregnant she is disabled ;
   
• Medical conditions related to pregnancy are protected and may include symptoms such as back pain, pre-eclampsia, gestational diabetes, complications requiring bed rest and the conditions after delivery;
   
  • Lactation is a pregnancy-related medical condition. A woman who is lactating must be treated the same as coworkers address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow women to do the same for lactation-related needs;
     
• Pregnancy-related impairments may be covered by the ADA if they substantially limit one or more major life activities or substantially limited major life activities in the past. Major life activities that may be affected by pregnancy-related impairments include walking, standing, and lifting, as well as major bodily functions such as the musculoskeletal, neurological, cardiovascular, circulatory, endocrine, and reproductive functions;
   
  • Examples of pregnancy-related impairments that may substantially limit major life activities include pelvic inflammation, which may substantially limit the ability to walk, or pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks. Impairments that may substantially limit reproductive functions include disorders of the uterus or cervix that may necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Pregnancy-related impairments that may substantially limit other major bodily functions include pregnancy-related sciatica limiting musculoskeletal functions; gestational diabetes limiting endocrine function; and pre-eclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions;
     
• Employees are entitled reasonable breaks and a private place to breastfeed;
   
• An employer violates Title VII by denying job opportunities to women, but not to men, with young children, or by reassigning a woman who has recently returned from maternity leave to less desirable work based on the assumption that, as a new mother, she will be less committed to her job. If an employer provides parental leave, it must be provided to similarly situated men and women on the same terms;
   
• An employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful;
   
• An employer may not reassign a pregnant worker who can perform her job on leave based on her co-workers' belief that she will place additional burdens on them and interfere with their productivity; and
   
• An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee's best interest. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby's birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.

An employer may not:

• Fire a pregnant employee for being absent if her absence is covered by sick leave policy;
   
• Require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
   
• Impose a shorter period for pregnancy-related leave than for other types of medical or short-term disability leave; and
   
• Must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.

An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave.

If an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.

Health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. If a plan covers a particular percentage of the medical costs incurred for non-pregnancy related conditions, it must cover the same percentage of recoverable costs for pregnancy-related expenses.

Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. To comply with Title VII, an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy covered. This is contrary to Burwell v. Hobby Lobby Stores, Inc., in which the Supreme Court recently ruled that the Patient Protection and Affordable Care Act's contraceptive mandate violated the Religious Freedom Restoration Act as applied to closely hold for-profit corporations whose owners had religious objections to providing certain types of contraceptives.

Employers are required to provide reasonable accommodations for pregnant employees. A reasonable accommodation is a change in the workplace or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job's essential functions, or enjoy equal benefits and privileges of employment.

Examples of reasonable accommodations include:

• Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
   
• Additional leave;
   
• Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
   
• Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
   
• Allowing a pregnant worker placed on bed rest to telework when feasible;
   
• Granting leave in addition to what an employer would normally provide under a sick leave policy;
   
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
   
• Temporarily reassigning an employee to a light duty position.

EEOC References:

• The EEOC Guidelines can be obtained at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
• Q&A document:  http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm