Posted on: October 11, 2023                                                                                        

With laws protecting pregnant workers continually evolving, employers must stay on top of leave requirements, nondiscrimination laws, and other rights and protections available to pregnant applicants and employees.

Leave

Whether a pregnant employee is entitled to leave can depend on a variety of factors, including the size of the employer and the state and local jurisdiction in which the employee works. Here are two examples.

• FMLA: Under the federal Family and Medical Leave Act (FMLA) an employer with 50 or more employees must allow female employees to take job-protected leave for incapacity due to pregnancy, for prenatal care, or for their own serious health condition following the birth of the child. Eligible employees may also use all or part of their FMLA leave entitlement to bond with their baby after childbirth or for a child's serious health condition. While FMLA applies to employers with 50 or more employees, some states have family and medical leave laws that cover smaller employers.
  
• State and local leave requirements: Some states and local jurisdictions require employers to grant leave for pregnancy, childbirth, or pregnancy-related medical conditions. In some of these states, leave entitlement is limited to those who are disabled by pregnancy. For example, in California, an employee disabled by pregnancy, childbirth, or a related medical condition is entitled to up to four months of disability leave per pregnancy, if their employer has five or more employees. Several states have paid family leave laws, but these are typically limited to bonding with or caring for a child after giving birth, rather than for pre-natal conditions. Check your state and local laws for details to ensure compliance.

Reasonable accommodations

Effective June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) prohibits employers with 15 or more employees from:

• Failing to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity;
• Requiring a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in the Americans with Disabilities Act;
• Denying employment opportunities to a qualified employee if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of the qualified employee;
• Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth or related medical conditions of the qualified employee; or

• Taking adverse action in terms, conditions or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth or related medical conditions of the employee.

The U.S. Equal Employment Opportunity Commission (EEOC) has proposed regulations  that would define and clarify various aspects of the law. For instance, the proposed regulations include examples of potential types of accommodations:

• Frequent breaks
• Sitting/standing
• Schedule changes, part-time work, and paid and unpaid leave
• Telework
• Parking
• Light duty
• Making existing facilities accessible or modifying the work environment
• Job restructuring
• Temporarily suspending one or more essential functions
• Acquiring or modifying equipment, uniforms or devices
• Adjusting or modifying examinations or policies

The regulations were open for public comment until October 10, 2023. Now that the comment period has ended, the EEOC will review the comments and consider them as it drafts final regulations. If the EEOC ultimately publishes final regulations, employers would be given a certain amount of time to comply. The entire process could take several months.

Update: The EEOC issued a final rule that becomes effective on June 18, 2024. A summary of the final rule can be found here. 

State and local laws

Several states and local jurisdictions already required employers to provide such accommodations. Some apply to smaller employers and/or have additional requirements. For example, in Minnesota, employers with one or more employee must provide reasonable accommodations for health conditions related to pregnancy or childbirth if the employee requests an accommodation with the advice of their healthcare provider or certified doula, unless doing so would impose an undue hardship on the business. In Minnesota, reasonable accommodations include, but are not limited to:

• Temporary transfer to a less strenuous or hazardous position
• Temporary leave
• Modification in work schedule or job assignments
• Seating
• More frequent or longer break periods
• Limits to heavy lifting

Check your state and local laws for details in your area.

Americans with Disabilities Act (ADA)

A pregnancy alone is not considered a disability under the federal ADA, but some impairments resulting from pregnancy (for example, gestational diabetes) may be considered qualified disabilities under the ADA. In these situations, employers may be required to provide a reasonable accommodation for a disability related to pregnancy (such as modifications that enable an employee to perform their job or a leave of absence to recover), absent undue hardship (significant difficulty or expense).

Other protections

The federal Pregnancy Discrimination Act (PDA) prohibits employers with 15 or more employees from discriminating against individuals on the basis of pregnancy or childbirth. The law prohibits, among other things, an employer from refusing to hire an applicant because of their pregnancy-related condition as long as they are able to perform the essential functions of the job. The law also forbids pregnancy-related discrimination when it comes to any other aspect of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits, termination, and any other term or condition of employment. 

An involuntary transfer because of an employee's pregnancy may violate federal and state non-discrimination laws. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, their employer may not require them to remain on leave until they give birth. Nor may an employer have a rule that requires the employee to take leave once they reach a certain point in their pregnancy. Additionally, employers may not prohibit an employee from returning to work for a predetermined length of time after childbirth.

Conclusion

Make sure you understand the laws that apply to pregnant workers, draft policies and trainings in accordance with those laws, and communicate those policies clearly to employees. Supervisors should also be trained on how to handle requests for leave and reasonable accommodations.