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What are the new laws on the horizon affecting pregnant employees?

Does My Employer Need to Accommodate a Pregnant Employee Like a Disabled Employee?

Generally, employers need not treat pregnant employees’ limitations as if they are disabilities. However, if the employee has developed a disability while pregnant, that disability may need to be accommodated because of the pregnancy.

An employer also needs to provide similar accommodations to employees with similar limitations, regardless of whether they are pregnant. If a pregnant employee is not afforded the same or similar accommodations as a similarly limited nonpregnant employee, that could be illegal discrimination based on pregnancy.

The Pregnant Workers Fairness Act (PWFA) has been proposed to extend similar protections as provided by the federal Americans With Disabilities Act (ADA), but it has not become law. Colorado has a new law with these protections for those living in that state, according to the National Law Review. It makes it an unfair employment practice for employers not to provide reasonable accommodations to a job applicant or an employee for pregnancy or childbirth-related conditions.

The ADA covers qualified employees with disabilities that substantially impair a major life activity (or employees with a record of such a disability or who are regarded as having a disability). That generally does not cover pregnancy itself, but it may cover pregnancy-related conditions or complications. The duration of an impairment is one factor to think about when deciding whether the major life activity is substantially impaired.

A plaintiff could argue that the ADA covers a severely limiting, though relatively short-lived, impairment. If a physician orders total bedrest and inactivity for a pregnant woman for weeks or months, the underlying condition may be severe enough to be considered a disability under the ADA.

As Colorado Goes, So Goes the Country?

coloradoA bill that was signed into law this year amends the Colorado Anti-Discrimination Act to give pregnant employees and applicants greater protection than under federal law. This new law covers most employers and requires accommodations for conditions related to pregnancy or childbirth that may qualify as disabilities under the ADA. It went into effect on August 10.

Under this new law, employers have the following rights and obligations:

  • They must give a reasonable accommodation to applicants or employees for health conditions related to pregnancy or the physical recovery from childbirth if they request such an accommodation, unless an accommodation would be an undue hardship.
  • They must get involved in an interactive process with employees who ask for an accommodation. This process must be timely and cannot be intentionally dragged out. Employers must conduct the process in good faith so both sides can come up with “effective, reasonable accommodations.”
  • Employers can require employees to provide a note from a health-care provider explaining the need for a reasonable accommodation.
  • Employers cannot require pregnant applicants or employees to accept an accommodation that they have not asked for or require them to take a leave of absence if the employer can provide a reasonable accommodation.

Like the ADA, employers need not provide accommodations that impose an undue hardship to their operation. Factors employers should consider when deciding whether a proposed accommodation would create an undue hardship include the following:

  • the accommodation’s nature and cost;
  • the employer’s overall financial ability;
  • the overall size of the employer; and
  • the impact on the employer’s expenses, resources, and operations.

If an employer provides an accommodation to a nonpregnant employee but fails to provide a similar one to a pregnant employee, the law presumes that the accommodation does not impose an undue hardship on the employer.

Pregnant employees are not supposed to get preferential treatment. To comply with the law, employers are not required to hire pregnant applicants, discharge or transfer nonpregnant employees with more seniority, promote unqualified pregnant employees, or create new positions for pregnant employees.

Like other civil rights laws, the Colorado law prohibits employers from retaliating against employees who ask for or use a reasonable accommodation for pregnancy, childbirth, or a related condition.

Proposed Federal Pregnant Workers Fairness Act

This proposal would spread this type of protection nationwide. It is designed to help pregnant women continue to work by requiring employers to make accommodations for pregnancy, childbirth, and related medical conditions similar to those they would need to make for disabled employees.

  • Employers would need to reasonably accommodate employees who have restrictions due to pregnancy, childbirth, or related medical conditions unless that accommodation would create an undue hardship on the employer. Examples could include making food or water available to a pregnant employee, providing a stool allowing a pregnant employee to sit instead of stand, reassigning heavy lifting responsibilities, or assigning a pregnant employee to an open light-duty position.
  • An employer could not discriminate against pregnant employees to discourage or prevent an accommodation request. Retaliation against an employee seeking an accommodation or obtaining one would be illegal.
  • Employers could not force a pregnant employee to take paid or unpaid leave if an available reasonable accommodation would allow her to work. The employee could choose to take such a leave, but her employer could not force on upon her.

Summing It Up

If you are a pregnant employee who finds herself with limitations or need of help to do her job, take the following steps:

  • Talk to your employer about its process for changing your job or getting help.
  • Talk to your doctor about what changes you need at work and document that need.
  • Provide any required letters or forms to your employer and engage in an open discussion. You may find your employer flexible and helpful. If not, contact us so we can talk about what is going on.

You can find more detailed information on accommodations for pregnant employees here.

If you feel you need legal advice or representation, contact our office so we can discuss your situation, the laws that may apply, and the next steps you should take.

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