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The U.S. Equal Employment Opportunity Commission has released new enforcement guidance for pregnancy discrimination that all employers should know.

The agency said in a statement that the guide is the first comprehensive update of its guidance on the subject of discrimination against pregnant workers since the 1983 publication of a compliance manual chapter on the subject. It supersedes that document and incorporates significant developments in the law during the past 30 years, the agency said.

The definition of pregnancy discrimination has been expanded under the new guidance, in light of amendments to the Americans with Disabilities Act (ADA) in 2008 to include individuals who have pregnancy-related disabilities, the EEOC said. It said much of the analysis in the enforcement guidance is an update of longstanding EEOC policy.

According to the EEOC’s new guidance, the Pregnancy Discrimination Act (PDA) covers not only current pregnancy but also discrimination based on:

  • A past pregnancy.
  • A woman’s potential or intention to become pregnant.
  • Lactation and breastfeeding.
  • Reproductive risk.
  • Infertility treatment.
  • Use of contraception.
  • Abortion.

 

The guidance also outlines the circumstances under which employers may have to provide light duty or leave for pregnant workers.

It provides that employers are required under Title VII of the ADA to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay.

 

Light-duty Policies – An employer has to provide light duty, alternative assignments, disability leave or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work.

Employers may not limit a pregnant worker’s access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).

However, if an employer’s light-duty policy restricts the number of light-duty positions or the duration of light-duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.

 

Leave – An employer may not force an employee to take leave because she is pregnant as long as she is able to perform her job. On the flip side, an employer must allow women with physical limitations resulting from pregnancy to take the same amount of leave as others who are similar in their ability or inability to work.

In particular, employers:

  • May not single out a pregnant employee to obtain medical clearance to work if the employer does not require the same of employees who are similar in their ability or inability to work.
  • May not remove a pregnant employee from her job because of pregnancy as long as she is able to perform her job.
  • Must allow her to return to work following recovery from the birth to the same extent that employees on sick and disability leave for other reasons are allowed to return.

 

If the pregnant employee used leave under the Family and Medical Leave Act, the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment.

Finally another section of the ADA, Title I, could be interpreted to mean that an employer has to provide leave beyond that which it usually allows its employees to take, as a reasonable accommodation for an employee with a pregnancy-related impairment that is a disability.

 

Medical Benefits – The PDA requires employers who offer health insurance to include coverage of pregnancy, childbirth and related medical conditions. An employer must provide the same as it provides for benefits relating to other medical conditions.