Monday, October 6, 2014

Watch Out for Being Too Nice to Pregnant Employees

It seems to be the year for pregnancy. Both the EEOC and the state legislature have issued new interpretations and protections this year to guard against pregnancy discrimination in the workplace. Previous posts on the Workplace Report have offered advice to employers on implementing workplace rules and policies to remain in compliance with expanded protections for pregnant, about to become pregnant, and recently pregnant workers. The recently issued EEOC Guidance on the Pregnancy Discrimination Act offers these less obvious points to also remember about pregnancy protections:

There is such a thing as being too nice. Sometimes when employers act in a way that they believe is deferential towards a pregnant worker (or a woman who has recently given birth), it can backfire. Here is an example:  A pregnant employee is normally assigned to counter duty in the police records department. Her job is to stand much of the day and assist the public in obtaining copies of police records as well as accept payment on fines for local ordinance violations and to answer general questions of the public. This employee is approximately eight months pregnant and has indicated to you that she intends to work up to her delivery and then take a 12 week FMLA leave. She reports to work every day on time and does her job without complaint but her supervisor sees that she is heavy with child and imagines that she is uncomfortable standing most of the day and possibly irritated with the sometimes difficult behavior of members of the public. The supervisor, thinking that she is helping the employee, insists that the employee begin her leave early because she believes that is better for the baby and the employee. The problem is that the employee doesn’t want to start her leave early and prefers to save all of her leave time for after the baby is born.

Forcing a pregnant employee to take or start a leave (even one that provides job protections) can be a violation of both state and federal pregnancy discrimination laws if the employee is still able to perform her duties with or without an accommodation. In the above example, the supervisor had no indication that the employee was unable in any way to work until her baby was born, but before suggesting a leave of absence to a pregnant employee who has indicated an inability to perform some of the duties of their job, stay compliant with federal and state law by finding out of a reasonable accommodation is available. In our example, if the employee had indicated that she was unable to stand for very long, the employer may be required to accommodate her by allowing her to sit at the counter rather than stand. Similarly, if the employee in our example reported that she had developed gestational diabetes, the employer should consider ensuring that she has appropriate breaks to eat. Of course, if an employer observes, or an employee reports, an inability by the employee to perform functions of her job, the employer likely has the rights to require a fitness evaluation at the employer’s expense.

Don’t forget the dads. Fathers are often the forgotten piece of the pregnancy and childbirth puzzle in the workplace. Historically, many new dads were reluctant to request anything more than a few days off at the birth of their child. Supervisor were sometimes known to ask “did you give birth to the baby? Why do you need time off?” or advise new dads that they would not be considered committed to their jobs or careers if they took time off to be with their new babies.

Employers know that eligible new dads are entitled to FMLA leave for the birth of a child. The recently issued EEOC Guidance on the Pregnancy Discrimination Act cautions employers that they should also be aware that if they offer a separate maternity leave (either paid or unpaid) to pregnant employees, they have to offer the same benefit to dads as well. In fact, employers are well advised to review their maternity leave policies at this time. While there is certainly no requirement to offer this leave benefit to employees (unless it is secured by contract), if employers want to maintain this benefit, they are wise to convert it to parental leave, and make it available to all new parents alike, regardless of gender or marital status.

Changes in protections for employees who are pregnant or who have recently experienced the birth of a child are one reason to review your employee handbook or policies. The ever changing legislation and rulings that impact the workplace make it important to regularly review and revise employee policies. The labor and employment attorneys at Ancel Glink can assist you in ensuring that your workplace has the most up to date policies and procedures. Contact Margaret Kostopulos or any of the labor and employment attorneys at Ancel Glink for more information on how we can keep your policies and procedures legally compliant.