In its 2012 Strategic Enforcement Plan, the Equal Employment Opportunity Commission (“EEOC”) made clear that it considered pregnancy discrimination a priority issue. With its far-reaching new Guidance on the Pregnancy Discrimination Act (“PDA”), the EEOC is now acting on that priority. The EEOC’s lengthy Guidance, issued on July 14, 2014, reads into the PDA a requirement that employers provide reasonable accommodations to employees who have pregnancy-related work restrictions even if the employee is not disabled or regarded as disabled under the American with Disabilities Act (“ADA”). http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#inten
In a series of pregnancy-related examples, the Guidance addresses the ways in which an employer should accommodate pregnant employees, such as:
-Redistribute marginal or nonessential functions (such as lifting) that a pregnant worker cannot perform, or alter how an essential or marginal function is performed.
-Modify workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even that is generally prohibited.
-Modify a work schedule so an employee experiencing severe morning sickness can arrive later than the usual start time and leave later to make up the time.
-Allow a pregnant worker on bed rest to telework where feasible.
-Grant leave in addition to what an employer would normally provide under a sick leave policy.
-Purchase or modify equipment, such as a stool for a pregnant employee who needs to sit while working.
-Temporarily reassigning an employee to a light-duty position.
Employers are encouraged to use the same interactive process that applies to providing reasonable accommodations under the ADA to determine reasonable pregnancy related accommodations.
The Guidance also addresses parental leave policies. The EEOC notes that the medical portion of leave related to pregnancy, childbirth or related conditions can be limited to women. However, non-medical parental leave time “must be provided to similarly situated men and women on the same terms.”
The Guidance details what the EEOC considers employer “best practices” for accommodating pregnant employees and, according to the EEOC, reducing the chance of PDA and ADA violations. Among the EEOC's suggested best practices are:
-Develop and distribute a policy addressing PDA and ADA requirements.
-Train managers and employees about their rights and responsibilities.
-Review employment policies and practices to identify and correct those that disadvantage pregnant employees.
-Review leave policies to determine if they adversely impact pregnant employees.
-Review light duty policies to ensure that they are structured to provide equal access to pregnant employees.
-Implement a process to consider reasonable accommodations for pregnancy-related disabilities.
The new Guidance is not without controversy. Two EEOC Commissioners did not sign on to it and issued statements questioning its broad scope which they viewed as an attempt to legislate change rather than interpret the law.
What does this mean for employers?
Although challenges to the expansive Guidance are likely, it does give employers very clear insight and direction on the EEOC’s position on the treatment of pregnant employees. EEOC enforcement guidance, such as its new pregnancy guidance, is not a statement of law, rather it is the EEOC’s own non-binding interpretation of what the law means. While courts do not always apply EEOC guidance, they do look to it in interpreting the discrimination laws that the EEOC enforces. This means that employers should take the EEOC’s interpretation seriously. As a practical matter, employers review their policies and practices and take steps to ensure that they are in line with the EEOC’s Guidance.