Updated EEOC Enforcement Guidance Requires Employers to Provide Reasonable Accommodations Under the PDA

Author: Beth P. Zoller, XpertHR Legal Editor

July 17, 2014

The Equal Employment Opportunity Commission (EEOC) has released updated Enforcement Guidance addressing pregnancy discrimination and related issues, along with a related Q & A document and a Fact Sheet for Small Businesses.

The release of the guidance, which had not been updated in over 30 years, is not without controversy. It comes at a time when the Supreme Court has agreed to hear the case of Young v. UPS, regarding an employer's obligations to provide accommodations to pregnant employees, and  a handful of states and cities have enacted legislation specifically addressing pregnancy discrimination and accommodations.  Republican Commissioners Victoria Lipnic and Constance Barker have criticized it as being premature, since the Supreme Court has not yet ruled on the issues it covers.

In the guidance, the EEOC reinforces the Pregnancy Discrimination Act's (PDA's) prohibition of discrimination based on pregnancy, childbirth and related medical conditions such as lactation, past pregnancy and a woman's potential to become pregnant.   

The guidance also advises employers that, under the PDA, they are required to provide the same benefits and leave to women affected by pregnancy as they provide to other individuals who are similar in their ability or inability to work.  For example, if an employer provides light duty, alternative assignments, disability leave or unpaid leave to non-pregnant workers, it is required to provide the same benefits to pregnant women.

The guidance also says that an employer is prohibited under the PDA from forcing a pregnant employee to take leave if she is able to perform the essential functions of her job.  An employer is also prohibited from taking adverse action against a pregnant worker based on its own views, or the views of co-workers or customers. The prohibition applies even if the employer believes taking leave would be in the best interest, and for the health and safety, of the pregnant worker. It also notes that employers are required to provide pregnant workers with the same leave benefits as non-pregnant workers who have similar ability or inability to work.

Further, the PDA dictates that if an employer provides health insurance to employees covering other medical conditions, the employer must also provide health insurance covering pregnancy, childbirth and related medical conditions on the same terms and conditions

The EEOC also states that while pregnancy itself is not considered a disability, pregnancy-related medical conditions and impairments may qualify as disabilities under the Americans with Disabilities Act (ADA). The 2008 amendments to the ADA expanded the definition of disability to include temporary conditions.  Therefore, pregnancy-related impairments such as back pain, gestational diabetes, preeclampsia and complications requiring bed rest may be considered disabilities under the ADA if they substantially limit one or more major life activities.

Accordingly, employers may be required to provide pregnant workers with disabilities the same reasonable accommodations as other workers with disabilities unless the accommodation would result in an undue hardship or significant difficulty or expense for the employer.  Reasonable accommodations for pregnant employees may include, but are not limited to the following:

  • Redistributing marginal or non-essential job duties that a pregnant worker cannot perform;
  • Modifying workplace policies regarding rest breaks or food and drinks on the job;
  • Modifying work schedules to accommodate morning sickness;
  • Permitting telecommuting;
  • Providing additional leave under a sick leave policy;
  • Providing equipment, such as a stool, to assist with  performance of job duties; and
  • Temporary assignment to a light-duty position.

The EEOC also suggests that the Family and Medical Leave Act and certain provisions of the Affordable Care Act regarding lactation and contraception coverage may provide pregnant workers with additional protections.   

The guidance also discusses the following best practices employers can implement in order to minimize the risk of pregnancy discrimination:

  • Being proactive and developing strong policies against pregnancy discrimination and harassment;
  • Training managers and employees on such policies;
  • Identifying any workplace policies that have an adverse effect on pregnant women; and
  • Taking pregnancy discrimination complaints seriously by investigating them and following up with disciplinary measures if needed.