By Jonathan K. Driggs, Attorney at Law

Pregnancy is not a disability under the Americans with Disabilities Act (ADA)—although I know a lot of women, including my wife, who would beg to differ!  Instead, pregnancy is protected by Title VII of the Civil Rights Act (as amended by the Pregnancy Disability Act) under the protected class of “sex.”  Employers may not discriminate against employees based upon their pregnancy status (more about that next month).

However, according to the U.S. Equal Employment Opportunity Commission (EEOC)—the federal agency that enforces anti-discrimination laws—some complications related to pregnancy can be disabilities.  You see, when Congress amended the ADA back in 2008, they greatly expanded the definition of “disability” to include a whole lot of conditions that we would not normally include.  Simply put, it ain’t just about wheelchairs and seeing eye dogs anymore.  Today, many conditions which last only a few months (or maybe less) can be disabilities.  As a result, the EEOC now believes that pregnancy-related conditions such as preeclampsia, sciatica, carpel tunnel syndrome and gestational diabetes may now be covered impairments under the ADA.

Recently, the EEOC has been sending clear signals that they see pregnancy-related complications as an “emerging issue” under the ADA.  While it is still too early to know what this all means, this creates some interesting questions for employers.  And while all employers will be impacted, small employers (those with 15 or more employees, but not the required 50 employees to be covered by the Family & Medical Leave Act) will likely find that their obligations towards pregnant employees (at least those with complications) have significantly increased.

For example, if a pregnant employee with complications is deemed to be disabled, she has the right to reasonable accommodation under the ADA.  As discussed previously in this column, accommodations can include time off from work (e.g., leaves of absences).  Therefore, an employee who does not have leave rights under the FMLA could nevertheless be eligible for leave as a reasonable accommodation under the ADA.  While accommodations which create an undue hardship on the employer would not be required, the standard for reaching an undue hardship is quite high (i.e., unduly expensive or disruptive, often narrowly construed in the employee’s favor).  In my experience, many employers who quickly come to the conclusion that a particular accommodation creates an undue hardship are often mistaken.

My fear is that employers may be caught unawares by the EEOC’s developing position on this issue and find themselves on the wrong side of an EEOC compliant.  As a result, employers will want to think twice before terminating a pregnant employee because she can’t come to work due to complications related to pregnancy (and regardless of what the law requires, hopefully we start out from a compassionate position).  Employers—large or small—should now consult the ADA in addition to the FMLA (when applicable) when determining what rights a pregnant employee may have when complications arise.

Next month: while we will not discuss the age-old topic of where babies come from, we will discuss where pregnancy-related discrimination claims come from… and you just might be surprised by how the problems get started!

This article should not be construed as legal advice.  Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.

Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.

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