Pregnancy Rights in a Pandemic - Abel HR

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Pregnancy Rights in a Pandemic

While there is much still to learn about the Coronavirus, we do know that there are certain populations we would like to protect from contracting the virus. One such group is pregnant women, who because they are busy building an entire human, tend to have weakened immune systems. The US Centers for Disease Control and Prevention (CDC) for their part notes that women are not only at risk for severe illness as a result of contracting Covid-19, but are also at risk for “other adverse outcomes, such as preterm birth.”

With more businesses beginning to think about their return-to-work plans, we wanted to highlight what employers can and do to protect your pregnant workers.

Look to the law

While there are a mish-mash of state and local rules as it pertains to return to work rules, there are two federal laws that predate the pandemic that pertain to pregnant women. Under the Pregnancy Discrimination Act (PDA), employers are required to provide workplace accommodations if they have 15 or more employees and if they have entered into the accommodations process for other, non-pregnant employees. Emily Martin, the vice president for education and workplace justice at the National Women’s Law Center, gives the example of offering to remove an employee with a compromised immune system from a customer-facing role as grounds to grant a similar request for a pregnant woman.

Now, if your employee’s pregnancy includes a pregnancy-related condition, such as gestational diabetes, they may be able to seek accommodations under the good ol’ fashioned Americans with Disabilities Act. Similar to the PDA, the ADA applies only to businesses with 15 or more employees and stipulates that any requested accommodation not present an “undue hardship” for the business owner.

That said, more than half of states and a handful of cities and municipalities have their own, typically stricter, rules as it pertains to pregnant worker accommodations, so be sure that you are in compliance with those (not sure what the rules in your region are? The Center for Work Life Law’s Pregnant at Work initiative has a database that can set you on the right path).

Make me an offer

When it comes to making a workplace accommodation, it falls to the pregnant worker to make the request and for you, as the employer, to determine whether it is reasonable. Of course, ideally, this should be an interactive process with you both discussing the problem and identifying potential solutions, but it is “not up to the employer to decide what they think is best,” according to Dina Bakst, the co-founder and co-president of A Better Balance, a nonprofit legal organization. Examples of reasonable accommodations for pregnant workers in client-facing positions could include being provided additional protective gear, opting for more telework time, or even altering their role to reduce their interaction with the general public. Again, not all of these may be feasible depending on your employee’s role but having an open conversation about what you can do is always worthwhile.  

Put it on paper

In some states and localities, a doctor’s note is required in order to begin the workplace accommodation process, although this is not always the case and should not be a condition of entering into discussions. In some cases, the physician may make suggestions for potential accommodations, but again, it is up to you and your employee to identify the changes that will be mutually beneficial. Either way, if an employee initiates the interactive process, you should begin a paper trail on all interactions between the employee, their direct supervisor, and anyone involved in the accommodation’s decision process should any of the decisions be contested down the line. Now, if your employee had performance issues ahead of any request for special accommodations, again, be sure to document EVERYTHING. Employees can claim pregnancy discrimination under the PDA, the ADA, and a host of other civil rights laws and you are especially at risk if you have entered into the interactive process with other members of staff in the past. 

Got to go

If you cannot reach an agreement regarding acceptable accommodations, your employee could opt to take leave, although most employment attorneys feel that this should be the option of last resort. In some states, the employee can collect short term disability or even earn a portion of their check under the Families First Coronavirus Response Act, although this is generally dependent on their being other children in the house who cannot attend school or daycare. In addition, employees may be eligible to collect unemployment insurance or pandemic unemployment assistance, but most of these options will come with a loss of health insurance and other benefits, which can prove particularly problematic for those preparing to give birth. Other options include taking unpaid leave under the Family and Medical Leave Act and, under certain circumstances, even under the ADA and PDA, although this isn’t an optimal option for families who need to pay their bills!

How are you accommodating pregnant workers during the pandemic? Have you identified any innovative solutions that we didn’t list above?

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