6 Best Practices Regarding Pregnant and New Mom Employees

Virtually every employer is going to deal with pregnant employees from time to time. Employers want to act in good faith and stay in compliance not only with the ADA and FMLA, but also with the Pregnancy Discrimination Act (PDA). PDA is an amendment to Title VII which specifically prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. It doesn't prohibit discipline or firing of individuals who are pregnant or gone on a leave of absence to give birth—as long these employees are treated in the same manner as employees with similar abilities or limitations.

So, how can an employer stay in compliance?

6 Best Practices Regarding Pregnant and New Mom Employees

Here are some best practices to follow to stay in compliance:

1. Train supervisors on stereotyping and unconscious bias towards (or against) pregnant employees. This is perhaps the most important item. Supervisors have to understand the problems that come with these behaviors—even when the behaviors are well-intentioned. For example, if there is a promotion available to a role that is more dangerous or has more health hazards – the employer cannot overlook someone who is pregnant, even though they may think it is acting in the pregnant employee's best interest. Supervisors need to understand not to make decisions for pregnant women. Include examples of statements that can be used as evidence of discrimination.
2. When dealing with employment issues, always focus on the qualifications and performance. Focus on job needs. Focus on legitimate business needs. Look at the performance—and don't let unconscious bias or preferences cloud the judgment.
3. Document all performance issues before disciplining or terminating a pregnant employee. This is critical. Many times an employer has perfectly good rationale for an action, but no documentation to prove it.
4. Develop pregnancy-blind policies. This means making sure that pregnant women are treated consistently with other people with limitations, when applicable. For example, if you have a policy for accruing seniority during a leave of absence, it should be applied to all leaves, rather than having a separate policy for maternity leaves.
5. Always go through the FMLA certification for all pregnancies, just as you would for other FMLA-related conditions. Don't give it more or less attention than any other FMLA-qualifying leave. "Make sure that you go through the certification process; get information from the doctors (to which you're entitled as an employer). And again, make sure that's consistent with the leave that's being taken." Maria Greco Danaher advised in a recent BLR webinar.
6. Do not automatically provide all requests for accommodations to pregnant employees—go through the regular reasonable accommodation process. The employer gets to decide what reasonable accommodation it wants to use, so long as it is reasonable. If we're too generous, we will set a precedent. In other words, treat employees consistently.

For more information on avoiding pregnancy discrimination, order the webinar recording of "Pregnancy-Related Liabilities: Your Compliance Obligations Explained." To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics.