From Trying to Expecting: Workplace Protections for Pregnancy-Related Conditions

Quick Hits

• Federal and state laws prohibit employment discrimination, harassment, and retaliation based on pregnancy.
• Employers may be required to provide leave and reasonable accommodations for employees experiencing pregnancy or childbirth, undergoing fertility treatments, or breastfeeding.
• Applying benefits and accommodations consistently can help employers reduce legal risk.  

Legal Protections

Several federal laws provide benefits and protect pregnant workers from discrimination, harassment, and retaliation in the workplace. In 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination based on pregnancy. Many states have similar laws providing benefits and legal protections for pregnant workers.

Eligible employees of covered employers may qualify for twelve weeks of unpaid leave under the Family and Medical Leave Act (FMLA) when they give birth or welcome a child through adoption or foster care. In some states, they may qualify for state-run paid family and medical leave programs when they give birth or welcome a child through adoption or foster care.

Pregnant workers can use intermittent FMLA leave to attend prenatal medical appointments and deal with pregnancy-related complications and symptoms. They must provide at least thirty days’ advance notice if the need for FMLA leave is foreseeable, such as for a scheduled labor and delivery.

Some states have mandated prenatal leave (not to be confused with “parental” leave), as well. For example, New York employers must provide up to twenty hours per year of paid prenatal personal leave for pregnancy-related healthcare purposes, such as physical exams, medical procedures, monitoring, testing, and discussions with health care providers related to the pregnancy. In New Jersey, there is a pending bill that would establish the New Jersey Paid Prenatal Personal Leave Act and similarly require New Jersey employers to provide employees with up to twenty hours of paid prenatal leave per year.

Colorado and Illinois have new state laws that require covered employers to provide time off for employees with a child in a neonatal intensive care unit.

A nongestational parent who is part of a same-sex couple has the same rights to take twelve weeks of unpaid FMLA leave as heterosexual parents do. After a child is born, an LGBTQ+ employee may need to take time off to bond with the child and complete the legal tasks necessary for the nonbiological parent to adopt the child. State-run paid family and medical leave programs also may be available in that situation.

Reasonable Accommodations

The Pregnant Workers Fairness Act (PWFA) requires employers with fifteen or more employees to provide reasonable accommodations for limitations related to pregnancy, childbirth, and related medical conditions, including gestational diabetes, postpartum depression, lactation, fertility treatments, and miscarriage, regardless of disability status. Typical accommodations under the PWFA include time off requested by the employee, remote work, light duty assignments, permission to sit, and permission to drink water at the workstation.

The Americans with Disabilities Act (ADA) applies to employers with fifteen or more employees, but generally does not require accommodations for someone with a normal, healthy pregnancy. However, it may cover workers with pregnancy complications, such as gestational diabetes, preeclampsia, or sciatica, if the condition limits a major life activity as defined under the law. Even if a pregnant employee does not qualify for an accommodation because she is not considered “disabled” under the ADA, she may be entitled to accommodations under the PWFA.

Both the ADA and PWFA require employers to go through an interactive process following a request for accommodation or when they know that the employee has a condition and is experiencing some workplace issue because of it, or the employee’s condition prevents her from making a formal request.

To justify denying a reasonable accommodation under the ADA or the PWFA, an employer must demonstrate the accommodation would impose an undue hardship, meaning a significant expense or difficulty. This is a high legal standard to meet. The fact that the employer, or a coworker, client, or customer disagrees with or dislikes a reasonable accommodation is not enough to establish an undue hardship. Rather, the accommodation would have to be unduly costly, extensive, substantial, or disruptive, or fundamentally alter the nature or operation of the business, to be considered an undue hardship.

For example, a request to reduce a full-time clerk’s hours to part-time might create an undue hardship if doing so would overburden the remaining clerk with a significantly increased workload and would compromise the remaining clerk’s ability to provide adequate and timely customer service. The employer in that scenario might be able to deny the requested accommodation as an undue hardship, but it would remain obligated to consider alternative accommodations.

LGBTQ+ employees may have specific needs related to pregnancy and fertility that may require reasonable accommodations. It would most likely violate state and federal antidiscrimination laws if an employer permitted heterosexual employees to take time off or receive accommodations for pregnancy or fertility treatments, but did not permit LGBTQ+ employees to do the same.

Employees who request pregnancy-related accommodations or leave are protected from retaliation for having made such a request or exercising their rights. The FMLA, PWFA, and ADA require employers to keep employees’ medical information confidential, and such information may not be maintained in personnel files.

Health Insurance Coverage

Under the Affordable Care Act (ACA), many prenatal services and prenatal vitamins are considered preventive care and must be covered by qualifying health plans without charging a deductible, copay, or coinsurance. Likewise, childbirth, breastfeeding support, newborn care, and postpartum depression treatment are deemed essential health benefits that must be covered by qualifying health plans, which can charge a deductible, copay, or coinsurance.

Meanwhile, birth and adoption are considered major life events that legally entitle an employee to enroll a child as a dependent in a health plan outside of the open enrollment period.

Next Steps

Employers may wish to review and update their written policies and practices to comply with all local, state, and federal laws regarding health insurance coverage mandates, leave and accommodation mandates, and other protections for pregnant workers and those welcoming a newborn or a child through adoption or foster care.

Applying leave policies, time off policies, and accommodations in a consistent manner using a consistent process may help prevent discrimination lawsuits based on pregnancy, gender, or sexual orientation.

Employers may wish to carefully document the legitimate business reasons for denying an accommodation request related to pregnancy, childbirth, or pregnancy-related conditions.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation, Employment Law, Healthcare, and Leaves of Absence blogs as additional information becomes available.

Justine L. Abrams is a shareholder in Ogletree Deakins’ Morristown office.

Sheri L. Giger is a shareholder in Ogletree Deakins’ Pittsburgh office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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