Yesterday’s Advisor covered several aspects of pregnancy discrimination as laid out in recent guidance issued by the Equal Employment Opportunity Commission (EEOC). Today, more about pregnancy plus notice of a timely new webinar on benefits for same-sex couples.
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[Go here for the first part of the discussion on pregnancy discrimination]
Requiring Leave
May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?
No. An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job.
Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interest. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby’s birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.
Past Pregnancy
Is an employee or applicant protected from discrimination because of her past pregnancy?
Yes. An employee or applicant may not be subjected to discrimination because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically related pregnancy leave following the birth of her child if the employee’s pregnancy is the reason for the termination. Close proximity between the employee’s return to work and the employer’s decision to terminate her, coupled with an explanation for the termination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.
Concerns About Coworkers
May an employer take an adverse action against a pregnant worker because of the views or opinions of coworkers or customers?
No. Just as an employer cannot refuse to hire or retain a pregnant woman because of its own prejudices against pregnant women, it cannot take an adverse action against a pregnant worker because of the prejudices of coworkers, clients, or customers. For instance, an employer may not place a pregnant worker who can perform her job on leave based on her coworkers’ belief that she will place additional burdens on them and interfere with their productivity.
Pregnancy Harassment
Does the PDA protect employees from harassment based on pregnancy, childbirth, or related medical conditions?
Yes. Unwelcome and offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance that is motivated by pregnancy, childbirth, or related medical conditions may constitute unlawful harassment.
Same-Sex Couples Tricky to Deal With? Start figuring it out on Tuesday, August 26, with a new interactive webinar, Employee Benefits for Same Sex Couples: FMLA Eligibility, Healthcare Coverage, Taxes & Other Post-Windsor Updates. Learn More
Pregnancy-related Disabilities
Are pregnant employees covered under Title I of the ADA?
In some circumstances, employees with pregnancy-related impairments may be covered by the ADA. Although pregnancy itself is not an impairment within the meaning of the ADA and thus, is not a disability, pregnant workers and job applicants are not excluded from the ADA’s protections.
Pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.
Examples of pregnancy-related impairments that may substantially limit major life activities include:
- Pelvic inflammation, which may substantially limit the ability to walk;
- Pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks;
- Pregnancy-related sciatica limiting musculoskeletal functions;
- Gestational diabetes limiting endocrine function; and
- Preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.
Discrimination by Association
Does the ADA protect the parents of a newborn with a disability?
Yes. The ADA prohibits discrimination against individuals who have a known “association” with an individual with a disability. Thus, for example, an employer would violate the ADA by refusing to hire the mother or father of a newborn with a disability because it was concerned that the applicant would take a lot of time off to care for the child or that the child’s medical condition would impose high healthcare costs.
Again, readers may find the guidance and Q&A at the addresses below:
http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
Pregnancy is tricky enough for HR (and for the mother), but what about when there’s a same-sex couple involved? Are your workplace policies up to date with the recent court decisions and Department of Labor (DOL) rules regarding rights for same-sex couples?
The Supreme Court DOMA decision last summer was all the talk. Then this past June, the DOL proposed an extension of FMLA protections to all eligible employees in same-sex marriages. This would enable same-sex married couples to be able to provide care to family members without fear of job loss, regardless of where they live.
HR professionals need to look beyond the headlines and the news debates. They need to develop a solid understanding of what the ruling and subsequent legal changes mean for employees, benefits management, and workplace policies.
Same-sex issues are evolving rapidly, and you need to have the most up-to-date answers to make sure you’re compliant on all kinds of things, including FMLA leave eligibility, taxes and employee benefits.
Join us on August 26 for a critical update on benefits for married same-sex couples, including what’s happened since the DOMA decision, what that means for keeping your organization in compliance, and what may be on the horizon.
How to get there? Fortunately, there’s timely help in the form of BLR’s new webinar— Employee Benefits for Same-Sex Couples: FMLA Eligibility, Healthcare Coverage, Taxes & Other Post-Windsor Updates. In just 90 minutes on Tuesday, August 26, you’ll learn everything you need to know about dealing with this ticklish, but unavoidable, issue.
Register today for this interactive webinar.
Same sex pregnancies? Join us Tuesday, August 26, for a new interactive webinar, Employee Benefits for Same Sex Couples: FMLA Eligibility, Healthcare Coverage, Taxes & Other Post-Windsor Updates. Earn 1.5 hours in HRCI Recertification Credit. Register Now
Participate in this interactive webinar and you’ll learn:
- Key changes employers have had to make during the year following the Court’s ruling in Windsor in 2013;
- What the new proposed Department of Labor FMLA rule could mean to your benefit plans;
- How different federal agencies have responded to the Court’s ruling and the practical impact their priorities will have on your organization;
- What state rulings on same-sex marriage during the past year mean to you and what you need to know when your state changes its same-sex marriage laws;
- The tax implications the Windsor decision has on qualifying same-sex spouses covered under employee benefit plans;
- What the Court’s ruling has meant for same-sex spouses seeking spousal rights to pension and retirement plans;
- A look at some key employee benefit issues, including the issues the jury is still out on;
- How to tell if a same-sex spouse would be entitled to coverage under a healthcare plan;
- Answers to tax and retirement benefit questions for same-sex spouses;
- And much more!
Register now for this event risk-free.
Tuesday, August 26, 2014
1:30 p.m. to 3:00 p.m. (Eastern)
12:30 p.m. to 2:00 p.m. (Central)
11:30 p.m. to 1:00 p.m. (Mountain)
10:30 a.m. to 12:00 p.m. (Pacific)
Approved for Recertification Credit
This program has been approved for 1.5 credit hours toward recertification through the Human Resource Certification Institute (HRCI).
Join us on Tuesday, August 26—you’ll get the in-depth Employee Benefits for Same-Sex Couples: FMLA Eligibility, Healthcare Coverage, Taxes & Other Post-Windsor Updates webinar AND you’ll get all of your particular questions answered by our experts.
Train Your Entire Staff
As with all BLR/HR Hero® webinars:
- Train all the staff you can fit around a conference phone.
- Get your (and their) specific phoned-in or e-mailed questions answered in Q&A sessions that follow each segment of the presentation.