Pregnancy Accommodation and Pregnancy-Related Disability Accommodation
Many impairments resulting from pregnancy may be disabilities protected under the Americans with Disabilities Act (ADA), which applies to most employers having 15 or more workers. If an employee is able to perform the essential functions of her job with or without accommodation, her employer must provide her with reasonable accommodations during her pregnancy and as a result of any physical limitations due to childbirth.
The “essential functions” of a job are the fundamental duties of a job, whether or not they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions, even with a reasonable accommodation, isn’t considered qualified for the job and isn’t protected from discrimination.
Example: A helicopter pilot works for a tour company, where she spends three hours a day flying a helicopter, two hours on maintenance, and two hours on paperwork. Despite the fact that less than 50% of her time is spent in actual flight, it is clear that “flying a helicopter” is an essential function of her employment.
An employee must request necessary accommodations upon the advice of a medical provider and provide notice of the requested accommodation(s). Once notice is provided, the employer and employee must engage in the interactive process, wherein they sit down and discuss what aspects need to be accommodated. The employer must provide options for accommodations, and the employee must provide input as to what will work for her needs. The employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees.
Examples: A pregnant employee may request additional bathroom breaks or breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, temporary transfers to less strenuous or hazardous work, a stool or chair, dress code accommodations such as allowing more comfortable footwear, and more.
Whether or not an accommodation is reasonable is a balancing test. Ideally, the employer and employee devise an accommodation that meets the needs of the employee without creating an undue burden, and it can be implemented as soon as possible. If an accommodation is impossible to provide or creates an undue hardship upon the company, an employer may not be required by law to accommodate the employee.
Example: The aforementioned helicopter pilot is advised not to fly during the last two months of her pregnancy and requests a temporary transfer to a less-strenuous office/maintenance position, or a temporary leave of absence. Depending on the circumstances, this may be reasonable (if she works for an national tour company with hundreds of pilots) or unduly burdensome (if she works for a five-person operation).
An employer may not penalize an employee for requesting or using an accommodation.