NEW YORK—Employers trying to accommodate pregnant workers must often walk a fine line, according to panelists at Advisen’s Executive Risk Insights conference.
A Supreme Court ruling earlier this year, in remanding Young v. UPS to a lower court, found that an employer must accommodate the workers under the Pregnancy Discrimination Act of 1987 unless doing so created a hardship more significant than some expense or inconvenience.
It also held that a pregnant worker is entitled to the accommodation afforded to similarly disabled workers.
But employers must also take into consideration state laws, which can be broader than the PDA or the parts of the Americans with Disabilities Act pertaining to pregnancy—and they should beware of potential liability for retaliation claims under the Family and Medical Leave Act, the panelists said.
“It brings an interesting dynamic to EPLI coverage,” Willis national EPLI leader Adeola Adele said. Not all EPL insurance covers liquidated, or double, damages due to the employees under FMLA if they use the unpaid leave because the employer refused accommodation.
“There is a potential for an FMLA retaliation claim,” Adele said.
The pregnant plaintiff in the UPS case, upon her doctor’s recommendation, requested and was refused “light duty,” which the delivery service made available to workers with similar disabilities. She also asked for a brief leave of absence, was denied her return to work and went on unpaid leave.
Employers face liability, too, in referring to a pregnant employee as disabled under the ADA, even if she is accommodated similarly to those employees with disabilities.
“Refrain from referring to pregnant employees as disabled,” said Edward McNally, financial products underwriting officer for CNA. “And have good [workplace] policies in place in terms of accommodation.”
While not seeing a spike in claims since the Supreme Court ruling, Willis told Advisen clients want to talk about its implications for “reasonable accommodation,” a requirement made as well in the high court’s ruling against Abercrombie & Fitch a few months later for refusing to hire a Muslim who wore a headscarf.
Adele also recommended employers review their policies and procedures regarding pregnant workers in light of the UPS case and engage in an interactive process similar to that required under ADA in accommodating them.
“And in accommodating them, then give accommodation to others,” Adele told Advisen. “Avoid inconsistent application.”
