Written By: Carol Schuler Harding
Earp Cohn P.C.
Philadelphia, Pennsylvania
1. Is pregnancy deemed to be a disability under the original ADA?
No. Neither pregnancy itself, nor common restrictions thereof, including avoidance of repetitive heavy lifting and of exposure to hazardous chemicals, have been deemed to be a disability requiring accommodation under the original ADA.[1] In rare circumstances, however, serious complications of pregnancy have been deemed to meet the definition of disability under the original ADA.[2]
2. Is pregnancy deemed to be a disability under the ADA Amendments Act (ADAAA)?[3]
While pregnancy is not considered to be a disability under the ADAA[4], the amended act significantly lowers the bar with regard to what may be considered to be a disabling limitation, restriction, or complication of pregnancy. The amended act broadens the definition of disability, and contains a rule of construction requiring courts to interpret the definition of disability broadly.[5] The stated primary purpose of the ADAAA was to make it easier for people with disabilities to obtain protection under the ADA.[6] While the EEOC has not stated that limitations which commonly accompany pregnancy should be considered to be disabling, in the Appendix to the regulations under the amended act, the EEOC refers to an employee who has an impairment resulting in a “20 pound lifting restriction that lasts or is expected to last for several months,” which is not an uncommon restriction during pregnancy, as meeting the definition of an ADA disability.[7] It should also be noted that in the EEOC’s strategic enforcement plan adopted in December of 2012, the EEOC identified accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act (“PDA”) (discussed below) as a priority for enforcement because such accommodations are an “emerging and developing issue.”[8]
3. Does the Pregnancy Discrimination Act (“PDA”) require that workplace accommodations be provided to pregnant employees?
It depends. The PDA is an amendment to Title VII that was passed in 1978. It requires that women affected by pregnancy, childbirth, or related medical conditions be treated in the same manner as other employees with similar abilities or limitations. Accordingly, under the PDA, workplace accommodations must be provided to pregnant employees with some related restrictions or limitations only if such accommodations are provided to non-pregnant employees with similar restrictions or limitations.[9]
4. What should an employer do when a pregnant employee indicates a need for a workplace accommodation?
If an employee, formally or informally, informs her employer that she has a pregnancy-related restriction, the employer must first consider whether the restriction may qualify as an ADAAA disability. As stated above, under the Amended Act, the bar is set quite low.[10] If it is determined that the restriction may qualify, the employer is required to start an interactive process with the employee to determine how the restriction might impair her ability to do her job, and whether a reasonable accommodation may be made.[11] The employer should determine the demands of the particular job by analyzing the actual job duties and determining the true purpose or object of the job.[12] The employer should next consult with the employee regarding her restriction and ask for documentation from her health care provider with regard to restriction and the need for a reasonable accommodation. Together with the employee, the employer should identify possible reasonable accommodations (such as light duty, unpaid leave, access to a chair or stool, job restructuring, modified workplace policies, periodic breaks, etc.) and determine which, if any, is the most appropriate for the employee and employer that does not cause undue hardship to the employer.[13] The employer should document the process and be sure to provide appropriate training to any supervisory employees who will be implementing the process. It may be helpful to centralize the process by directing that all such inquiries be referred to certain Human Resource personnel, who are well-trained, who will work with both the employee and her direct supervisors to determine how to proceed.
5. What is a “reasonable accommodation”?
Measures that would be deemed to be reasonable accommodations vary on a case by case basis. Generally, a reasonable accommodation is any change in the work environment or in the way things are customarily done,[14] and may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, job-protected leave, acquisition or modification of equipment, modifications of policies, and other similar accommodations.[15] An employer need not implement a reasonable accommodation for its pregnant employee if it would cause undue hardship to the employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.[16]
6. What is the total amount of leave that must be provided to a pregnant employee?
The total amount of leave that must be provided varies on a case by case basis. An employer must consider its obligations under not only the ADAAA and the PDA, but also the Family and Medical Leave Act (FMLA).[17] The PDA applies only to the pre-natal period. The FMLA, and possibly the ADAAA, applies to both the pre-natal and post-natal periods. The FMLA provides the employee with certain leave rights for both her serious health condition that makes her unable to perform the functions of her position, and for the birth and care of her child.[18] Under the PDA, the employer must provide leave to the pregnant employee during the course of a pregnancy if such leave would be provided to a non-pregnant employee with similar restrictions or limitations. Where an employee may be entitled to leave under both the ADAAA and the FMLA, the employer should consider her leave rights under both statutes separately and then determine where the two may overlap. Take, for example, a pregnant employee who advises her employer that she has been placed on bed rest with six weeks remaining in her pregnancy. Further, the employee advises that she will give birth by C-Section and will require eight weeks leave following the birth. Twelve weeks of leave are guaranteed under the FMLA. This would cover the time after the birth of the baby and four of the six weeks of bed rest. The remaining two weeks of bed rest may be deemed to be a reasonable accommodation under the ADAAA. If it presents an undue hardship to provide the leave however, the employer is not required to provide the leave. If this is the case, the employer should anticipate having to respond to a complaint and must be prepared to prove that the additional leave actually would cause it undue hardship. If the additional leave would be provided to a non-pregnant employee with a similar restriction, the provision of the additional leave likely would fail to meet the burden to prove undue hardship to the employer, and would be a required accommodation under the PDA.
[1] See, e.g., Young v. United Parcel Service, Inc., 707 F.3d 437, 445 (4th Cir. 2013) (noting that “[g]iven the relatively manageable weight restriction – twenty pounds – and the short duration of the restriction, there is no evidence that Young’s pregnancy or her attendant lifting limitation constituted a disability within the meaning of the ADA.”); Spees v. James Marine, Inc., 617 F.3d 380, 396 (6th Cir. 2010) (stating “because pregnancy is not the result of a physiological disorder,” it is “not an impairment.”); Farrell v. Time Serv., Inc., 178 F. Supp. 2d 1295, 1298-99 (N.D. Ga. 2001)(noting “[a]t most, courts have held that pregnancy may rise to the level of a disability if there are severe complications.); Minott v. Port Auth. of N.Y. & N.J., 116 F.Supp.2d 513, 525 (S.D.N.Y. 2000) (noting that pregnancy related conditions have been found to constitute a disability under the ADA “only in extremely rare circumstances.”); 29 C.F.R. pt. 1630 app §1630.2(h) (“conditions, such as pregnancy, that are not the result of a physiological disorder are . . . not impairments.”); EEOC Compliance Manual § 902.2(c)(3)(“Because pregnancy is not the result of a physiological disorder…it is not an impairment and therefore cannot be a disability.”)
[2] See, e.g., Cerrato v. Durham, 941 F.Supp 388, 393-94 (S.D.N.Y. 1996) (finding that Plaintiff’s pregnancy-related condition of spotting, leaking, cramping, dizziness and nausea was sufficient to survive motion to dismiss ADA claim); Patterson v. Xerox Corp., 901 F.Supp. 274, 278 (N.D.Ill., 1995) (finding that Plaintiff’s pregnancy-related severe back pain was sufficient to survive a motion to dismiss ADA claim.)
[3] The original ADA applies to instances of alleged discrimination occurring before January 1, 2009. The ADAAA applies to instances of alleged discrimination occurring on or after January 1, 2009.
[4] 29 C.F.R. pt. 1630 app. 1630.2(h).
[5] 42 U.S.C. § 12102(4)(1)(A).
[6] 29 C.F.R. pt. 1630, app § 1630.1(c), citing, Joint Hoyer-Sensenbrenner Statement on the Origins of the ADA Restoration Act of 2008 H.R. 3195.
[7] 29 C.F.R. pt. 1630, app § 1630.2(i)(1)(ix)
[8] EEOC Strategic Enforcement Plan, FY 2013-2016, at 10 (2012), available at http://www.eeoc.gov/eeoc/plan/upload/sep.pdf.
[9]A frequently cited discussion of the limited nature of the requirements of the PDA appears in Troupe v. May
Dep’t Stores, 20 F.3d. 734, 738 (7th Cir. 1994) (Judge Posner), where the court noted that “[t]he Pregnancy Discrimination Act does not … require employers to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.” It should be noted that the Pregnant Workers Fairness Act (PWFA), H.R. 1975 proposed in Congress would, essentially, combine the requirements of the ADA and the PDA to require employers to make reasonable accommodations to employees who have limitations stemming from pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the employer.
[10] While the bar is low, there is still a bar. 29 C.F.R. § 1630.2(i)(1)(ii) states that an “impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a ‘disability’ within this section.”
[11] The EEOC recognizes that in some circumstances the necessary accommodation may be so apparent to the employer and employee that no interactive process would be necessary. The example given is an employee who uses a wheelchair requests that his desk be put on blocks to allow the chair to pass under the desk. 29 C.F.R. pt. 1630, app § 1630.9.
[12] 29 C.F.R. pt. 1630, app. § 1630.9.
[13] Id.
[14] 29 C.F.R. pt. 1630 app. § 1630.2(o).
[15] 42 U.S.C. § 12111(9).
[16] See 42 U.S.C. § 12111(10).
[17] It should be noted that both the ADAAA and the PDA apply to private employers with 15 or more employees, but that the FMLA will not apply unless a private employers has 50 or more employees.
[18] 29 U.S.C. § 2612(a).