As everyone knows, pregnant employees face certain health risks that other employees do not. What happens if you discover that you have a pregnant employee who may have to perform work that could be harmful to her health and/or the health of her unborn child? Should you bar her from engaging in this potentially harmful work?
The answer, which may be surprising to some, is no-as doing so is probably illegal. One employer recently learned this the hard way. The employer hired an employee to repair furniture. The job required the employee to use chemicals that could be potentially harmful to pregnant women and their unborn children. When the employee informed her employer that she was pregnant, her employer showed her a label on chemicals she would use stating that they were dangerous to pregnant woman. The employer then told her that because she was pregnant, she could not handle the chemicals, and therefore could no longer be employed.
The Equal Employment Opportunity Commission (EEOC), which enforces federal employment laws, sued on behalf of the employee, alleging that her employer’s conduct violated the Pregnancy Discrimination Act (PDA). The PDA “prohibits sex discrimination on the basis of pregnancy,” and applies to all employers with more than 15 employees. The law requires employers to treat pregnant employees the same way that other employees are treated. It specifically prohibits an employer from refusing to hire, demoting, disciplining, firing, or discriminating against an employee because she is or has been pregnant.
The EEOC ultimately settled with the employer, requiring it to pay the wrongfully-discharged employee $55,000 and to provide its employees with training on pregnancy discrimination.
An employer may have good reasons for wanting to protect pregnant employees. However, I recommend not doing so. Treating a pregnant employee differently from other employees is almost certainly illegal and will likely create problems for the employer. As the EEOC explained, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”
With that said, employers can provide pregnant employees with accommodations if the employee requests them. An employer can also remind an employee of the risks that the job may pose to them or their unborn child, and that the employee has a right to request time off. Employers should consider including this information in their employee handbooks or discussing it during job training.
Do you have a policy regarding pregnant employees?
Is this policy written down somewhere, like in an employee handbook?
Have you provided training to your managers about this policy?
If you have not, you may want to contact an experienced attorney for help doing this.
