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Commentary and Analysis Regarding Colorado Law

Pregnancy and the Americans with Disabilities Act

Submitted by Catherine Tallerico.
The Pregnancy Discrimination Act (PDA) requires that a covered employer treat women affected by pregnancy, childbirth or related medical conditions the same as other applicants or employees who are similarly situated in their ability or inability to work.  The PDA covers all aspects of employment, including hiring, firing, promotions and fringe benefits.  Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy and potential pregnancy.

The United States Supreme Court decided the Young v. UPS case in March 2015.  UPS had a light duty policy which only applied to those injured on the job or those suffering from a disability as defined by the Americans with Disabilities Act.  A pregnant woman who had lifting restrictions due to her pregnancy was therefore not entitled to light duty work.  The Court held that UPS’s practice could be discriminatory in that it failed to provide light duty to the pregnant employee even though other workers who were similar in their ability or inability to work were permitted light duty work.  The Court sent the case back to a lower court for trial.

Based on this decision, best practice now dictates that an employer should not limit a pregnant worker’s access to light duty based on the source of her impairment.  In other words, an employer should reconsider light duty policies limited to employees with on the job injuries.   An employer may continue to restrict the number of light duty positions or duration of light duty assignments as long as it applies the restrictions to all workers who are similar in their ability or inability to work. Leave should additionally be allowed on the same terms and conditions as other similarly situated employees. Other key aspects of the PDA include:

  • An employer may not single out an employee’s pregnancy-related condition for medical clearance if such is not required of employees who are similarly situated in their ability or inability to work.
  • An employer may not remove a pregnant employee from her job because of her pregnancy as long as she is able to perform her job.
  • An employer must allow a pregnant employee to return to work following recovery from a pregnancy-related condition to the same extent that employees on sick and disability leave for other reasons are allowed to return to work.
  • If the employee uses leave under the Family Medical Leave Act (FMLA) the employer must restore the employee to the employee’s original job or to an equivalent job.

Additionally, the Equal Employment Opportunity Commission (EEOC) has issued new guidelines stating that the Americans with Disabilities Act (ADA) may require a covered employer to provide leave to a pregnant worker as a reasonable accommodation .  The EEOC guidance states that although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Such pregnancy related disabilities, although temporary in nature, can include gestational diabetes, pregnancy-related sciatica or preeclampsia. An employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of pregnancy-related disability unless the accommodation would result in an undue hardship (i.e. significant difficulty or expense). Examples of reasonable accommodations that may be considered for a pregnancy-related disability include the redistribution of marginal or non-essential functions of the job, modification of workplace policies (such as more frequent breaks), modification of work schedules, and additional leave or temporary reassignment

Lastly, the Fair Labor Standards Act requires covered employers to provide “reasonable break time” for non-exempt employees to express breast milk until the child’s first birthday.  Colorado’s Workplace Accommodations for Nursing Mothers Act requires employers to accommodate nursing mothers until the child is 24 months old. Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.”  Please let us know if you have any questions.

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