Pregnancy at Work: Employer Questions and Employee Disclosure

Employers cannot discriminate against pregnant female employees, married or unmarried. Both federal and state laws make sure that pregnant women are treated on par with other co-workers who require temporary medical leave.

Pregnancy is a protected characteristic at work. It is directly protected by certain federal and state laws, and is also indirectly protected by the laws prohibiting discrimination against women (since only women become pregnant) or on the basis of disability (since pregnancy is sometimes considered a disability for certain purposes). This gives pregnant women a number of rights. 

Federal Pregnancy Discrimination Act (PDA): Discrimination on the basis of pregnancy is specifically prohibited by the federal Pregnancy Discrimination Act (PDA), as well as a majority of states which have similar legislation as the PDA. What this means is that a pregnant employee may not be terminated, harassed, or suffer any negative job consequences (like demotion, or loss of hours or pay) simply because she is pregnant. As discussed below, if the pregnancy impacts the job or workplace, the employer may be able to take action due to that impact—but only if there is some impact. The mere fact of pregnancy does not-- by itself --justify any negative treatment. 

Another no-no is that an employer or a prospective employer may not ask an employee or qualified job candidate whether she is pregnant. Merely asking, or basing a hiring or promotion decision on pregnancy, is a violation of labor law and can result in legal liability against the employer. For example: if a job candidate is asked whether she is pregnant and answers “yes,” then does not get the job, a reasonable conclusion is that the refusal to hire was due to her pregnancy. Of course, at some point as the pregnancy advances, an employee is almost certainly going to need to disclose the fact of the pregnancy. 

Workplace Issues That Arise 

Once the employer is aware of the pregnancy, the following issues come into play: 

1)      Reasonable accommodation: Pregnancy is sometimes considered a disability for employment purposes; as a result, the Americans with Disability Act may sometimes kick in. For example, if the pregnancy has medical complications, an employee may ask for “reasonable accommodations” for her pregnancy. This may include: changed duties, reduced hours, or time off for doctor visits.

If it’s a pregnancy with complications or other conditions (i.e., morning sickness, back pain) affecting the employee’s ability to work, the employee needs even more accommodations than most pregnancies require. In this instance, the employee has to ask for them at the first reasonable opportunity. Similarly, if anything about the pregnancy will affect the employee’s job performance, this condition needs to be disclosed to the employer, to allow the employer a chance to accommodate reasonable request, as, for example, the employee not being able to go on business trips or lift heavy objects.

There are limits in providing a reasonable accommodation. The employee must be able to do the core functions of her job. If the employee simply cannot do what she was hired to do, the employer would not have to accommodate her (for example, create a new job specifically tailored for her) and could potentially suspend or even terminate her. But accommodations that allow the employee to do her job (while maintaining comparable pay and benefits) while pregnant are ones the employer would be expected to make. In other words, the employer must make adjustments for a pregnant woman in the same manner as it must for other employees with a temporary disability.

2)     Paid time off and unpaid time off under FMLA: An employee who has paid time off (PTO), like sick or vacation days, may use them for pregnancy. The employer has a right to know about any time off a pregnant employee will  need to take, as well as any protected or guaranteed unpaid time off, such as  time that will be requested under the federal Family and Medical Leave Act ( FMLA), or any leave allowed under individual state laws. The employer has the right to run and manage its business; that gives it the right to know about an employee’s schedule as soon as is reasonably possible. 

Not all employees are covered by the FMLA or comparable state laws. Only employees working for companies which have at least 50 employees who all work within a 75-mile radius, and where the employee requesting leave (a) worked for that company for at least one year and (b) worked at least 1,250 hours in the last 12 months, are covered under FMLA. Pregnant women who are new to their job, or who are working for smaller businesses, may not be entitled to any maternity leave, other than through the use of any paid time off (vacation or sick days) they have earned or accrued. 

3)  Notice: To the extent that the pregnancy will impact on job performance in some fashion—i.e., any change in job duties, requiring changes in plans or schedules, or requiring time off from work —the employee needs to tell the employer. However, she only needs to tell the employer to the extent these things will occur. If, for example, someone could work without changes in duties or interruption, right up to the delivery date, then simply take three days off for birth, and then return to work, the employee’s only obligation would be to provide whatever notice is required under normal company policy for three sick, vacation, or personal days.

The employer’s legitimate interest—their only legitimate interest—is in the quality and quantity of the employee’s work, without reference to their medical condition. Only factors directly affecting work need to be disclosed by the employee, and then only as they come up. The risk, however, in not communicating more than the pregnant worker thinks is strictly necessary is if the failure to communicate leads to the employee violating reasonable company policies regarding providing notice about a condition requiring leave or otherwise will impact the employee’s ability to perform her job.

Also, too-late notice may mean that an otherwise-reasonable accommodation is no longer reasonable— an employer could not be expected to make it on such short notice. The primary issue is whether or not failing to communicate enough information would violate the company’s own polices on giving notice about a condition that would impact the employee’s ability to do the job. Violating such policies could let the employer “off the hook” when it comes to having to make accommodations.

4) Returning to work: A pregnant employee does not have to disclose whether she intends to return to work after having a child. There is no obligation to provide this information in advance under employment law. Her job (or its equivalent in pay and benefits) must be kept open by the employer.  She must be treated in the same manner as an employee who is on medical leave.  Keep in mind, though, that most employees are “employed at will,” which cuts both ways: either the employer or employee can end the employment relationship at will without advance notice or warning.

5)  Seniority: How long you have worked (“seniority”) matters in some jobs. While an employee is on medical or family leave, including pregnancy-related leave, she does not continue to accrue seniority. An employee taking three months of FMLA leave, for example, does not add three months of seniority while on leave. She will only start accruing seniority again when she returns to work. But she will not lose any time in service or seniority, either: she will return to work with the same amount of seniority she had when she went out on leave. 

Employer Cannot Discriminate Because of Your Pregnancy

The key to treatment of pregnant workers is that they are not to be singled out or treated unfairly, compared to workers with other medical conditions (e.g. carpal tunnel syndrome, diabetes, vision or hearing impairment, back problems, etc.) Examples of how this plays out include in terms of requests for leave: if there is a thirty-day leave policy for medically recommended leaves, then a pregnant worker is similarly entitled to a thirty-day leave. The pregnant worker may not be denied leave or given less leave than employees seeking leave for other medical reasons.

At the same time, however, the pregnant worker is not entitled to more leave—or better treatment—than workers with other medical concerns. If work performance suffers because of the pregnancy, then the employer may discipline the pregnant worker for her poor work performance, the same as they may any worker whose medical condition (despite reasonable accommodations) impacts work. The ADA requires reasonable accommodations to “disabilities”—including pregnancy—but only if the worker provides notice of the condition and asks for an accommodation…and even then, only a reasonable accommodation is required.

How to Get Help 

If you feel your rights are being violated, or you were fired because of your pregnancy, or denied an accommodation, or fired while on pregnancy leave, review the documents that relate to your job as well as talk with your HR department to see if you can resolve the matter internally.  You can also file a complaint against your employer with the EEOC, the federal agency which enforces the federal anti-discrimination laws, or with your state equal or civil rights agency, if it is state law being violated.  You can also retain an employment lawyer in your area to determine whether grounds exist for filing suit.