As the COVID-19 pandemic continues to create hardships and safety concerns for all workers, pregnant employees and new mothers may face additional challenges and uncertainty when returning to the workplace. According to the Centers for Disease Control and Prevention (CDC), pregnant women experience immunologic and physiologic changes that can increase their risk for severe illness from respiratory infections, such as COVID-19. To date, studies of the effect of COVID-19 on pregnant women are limited, but generally demonstrate pregnant women are more susceptible to chronic lung disease, diabetes, cardiovascular disease and other related ailments than non-pregnant women. In this article, we seek to provide a list of frequently asked questions and answers to provide some guidance in assisting pregnant workers with their rights related to discrimination, reasonable accommodation, paid/unpaid time off, and lactation time/breastfeeding.
Q. What federal laws exist to protect pregnant women in the workplace?
A. There are several federal laws that protect pregnant workers, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The PDA prohibits covered employers with 15 or more employees from terminating, refusing to hire, demoting or taking any other adverse action against an employee because of her pregnancy status. The ADA and the Rehabilitation Act prohibit employment discrimination on the basis of a disability. Pregnancy is not considered a disability, but many of the physical impairments (e.g., gestational diabetes) that occur during pregnancy may be considered disabilities under the ADA. Furthermore, under the ADA it is illegal to discriminate against workers because they are perceived as having a disability, which may apply to some pregnant women.
The ADA focuses on discrimination committed by private and nonfederal government employers; whereas, the Rehabilitation Act prohibits discrimination by three categories of employers: the federal government, entities receiving federal financial assistance and federal contractors.
Q. I work at a job (e.g., grocery store, restaurant, office) that requires me to have a lot of contact with the public. My supervisor told me that he needs to reduce my work hours because he does not want me or my unborn baby to be exposed to COVID-19. Is this legal?
A. No, this is not legal under federal law. Pregnant employees must be permitted to work as long as they are able to perform the essential functions of their jobs. An employer may not discriminate against a worker because she is pregnant. The employer may not unilaterally decide if the employee is incapable of doing the job nor can the employer stop the employee from working just because it has concerns for the employee’s safety. If the employer has a legitimate concern about the employee’s safety, it can offer the employee the opportunity to work less but not require her to do so.
Q. I just returned to work from maternity leave and now I’m teleworking from home. My supervisor is not giving me certain important projects because he believes I will be distracted by my kids at home, but my male co-workers with kids get the projects. Is this legal?
A. It is unlawful for an employer to discriminate against an employee by altering the compensation, terms, conditions or privileges of employment because the employer perceives that the employee will not be able to do her job because she has kids or just returned from maternity leave. Employees must be permitted to work if they can perform the essential functions of their jobs without regard to the sex of the employee or his or her status as a caregiver.
Q. My employer told me and some of my co-workers that we will be laid off because of COVID-19 pandemic. I was on maternity leave when this happened. What are my rights?
A. Anti-discrimination laws that prohibit discrimination against pregnant workers apply during a pandemic. However, being pregnant does not give you special protection or prevent your employer from terminating you for a non-discriminatory reason such as the company’s poor financial condition. In order to have a claim, you would need to have some proof that your pregnancy status was the true reason for your layoff. Workers on medical leave, regardless of their medical condition, are not given special protection from layoffs, if the layoff was for a non-discriminatory reason.
Q. What is an accommodation?
A. An accommodation is a change in the employee’s workplace or job duties that enables an individual with a disability to perform the essential job functions or enjoy the benefits or privileges in the workplace. Examples of accommodations may include modifying schedules or workplace policies allowing more frequent breaks, granting a leave of absence, or temporarily assigning an employee to a light duty position.
Q. If I am pregnant and working during the COVID-19 pandemic, can I ask for a workplace accommodation such as staying away from customers at my worksite or working from home?
A. The answer is that it depends. If the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity such as gestational diabetes under the Americans with Disabilities Act (ADA), employers are required to engage in an interactive process to address employee’s requests for accommodation. An employer may only deny a needed reasonable accommodation to an employee with a disability if the accommodation would result in an undue hardship for the employer. An undue hardship is defined as an accommodation requiring significant difficulty or expense.
Even if you are not suffering from an impairment under the ADA, employers must treat a pregnant employee the same as any other employee. Thus, if your employer is letting other non-pregnant employees work from home or avoid contact with customers, the employer must treat the pregnant employee the same way.
We encourage you to review and follow your company policy, by advising the appropriate contact person (e.g., supervisor, HR manager) that you need an accommodation due to your pregnancy-related disability or wish to be treated as any other employee.
Q. What if I can’t work at all because of my pregnancy, even with an accommodation?
A. First, speak to your healthcare provider to make sure you receive their medical opinion about your ability to work. You should advise your healthcare provider of your job duties by sharing a job description (if you have one), and by describing your work environment and other accommodations that have been provided to similarly-situated employees with medical conditions. If your healthcare provider determines that you cannot work in your normal job at all, you may be entitled to take unpaid leave as an accommodation or under the Family and Medical Leave Act (FMLA).
Q. What are my rights if I need to take time off for the birth of my baby?
A. The Family and Medical Leave Act (FMLA) entitles eligible employees who work for private employers with 50 or more employees working with a 75 mile radius to take up to 12 weeks of unpaid, job protected leave for their own serious health condition and the birth of a child. Even if your employer does not have 50 or more employees, you should review your company handbook to determine if your employer has a policy regarding time off for employees who need to take a medical leave of absence. That policy will control if the Company has too few employees.
Q. What if I am unable to work because I have COVID-19, have COVID-19 symptoms, or have been advised by my doctor to self-quarantine due to COVID-19 concerns? I need income, what can I do?
A. Under the Families First Coronavirus Recovery Act (FFCRA), eligible employees are entitled to up to 2 weeks or 80 hours (or the part-time employee’s equivalent) of emergency paid sick leave (EPSL). If you need additional time off after the EPSL, you may use any accumulated sick leave or other paid time off. If you do not have additional accumulated paid time off, you may be eligible for unpaid leave pursuant to the FMLA, if your employer has more than 50 employees. Also, check your employer’s leave policy, as discussed above. The FFCRA applies to private sector employers with fewer than 500 employees and certain public sector employers. The FFCRA is a temporary law that expires at the end of the year.
Q. I have a newborn that I am breastfeeding, so I need time to periodically use a breast pump to express milk. I work in a cubicle, but my supervisor told me that I could use an empty stall in the women’s bathroom for privacy. What are my rights?
A. The Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee needs to express milk. Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. All employers covered by the FLSA must comply with the Affordable Care Act unless the employer has fewer than 50 employees and can demonstrate that compliance with the law would impose an undue hardship.
In addition, many states are passing their own lactation time laws and some of them provide better coverage than the federal law. For instance, South Carolina just passed the Lactation Support Act which does not limit the right to breaks to just one year from the birth of the baby.
Q. Does the break time for expressing milk have to be paid break time?
A. No. Employers are not required to compensate nursing mothers for breaks for the purpose of expressing milk. If, however, the employer already provides compensated breaks, a nursing mother who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.
Q. What do I do if I think I have been discriminated or retaliated against on the job because I’m pregnant or because I am a woman?
A. You have several options. First, review your employer’s policies and procedures to determine how your employer requires you to report employment discrimination and retaliation. Most companies have detailed policies that provide information about the complaint, investigation and resolution process and you need to follow that procedure.
In addition, employees can file a discrimination charge with the Equal Employment Opportunity Commission (EEOC). This federal agency is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), gender identity, or sexual orientation, national origin, age (40 or older), disability or genetic information or retaliate against an employee who complains of discrimination.
Furthermore, you can contact one of the employment attorneys at the Schwartz Rollins law firm at 404-844-4130 for assistance, or fill out a Request for Consultation form. We would be more than happy to assist you.
Q. Where can I find additional information about my rights in the workplace?
A. The EEOC has a website (www.eeoc.gov) that contains detailed information about the agency and the federal laws it enforces. In addition, the United States Department of Labor website (https://www.dol.gov/agencies/whd/nursing-mothers) contains information regarding the Affordable Care Act’s provisions concerning break time for nursing mothers.
Please note that this list of FAQs does not constitute legal advice. Should you have additional questions regarding the rights of pregnant workers, please contact our office to speak with one of our employment attorneys at 404.844.4130.