Protecting Pregnant Employees from Themselves— I Can Do That Right?

Brenda has been working as a construction worker for 10 years installing drywall. When she found out she was pregnant, she was hesitant to tell her employer and knew it was only a matter of time before her co-workers would notice she was pregnant and not just gaining weight. After telling her boss, he said she had to go on leave, immediately. “But, why? I’ve never felt better,” Brenda responded. “Because I don’t want to be responsible for you or your unborn child being hurt,” he replied.

The Employee’s Perspective

Brenda was surprised – she was still the same Brenda and she didn’t need to take leave. Not only that, Brenda earns the primary income for her family and needs to keep working as long as possible. She also intended to return to work as soon as she was able – possibly two weeks after delivering based on how she’s feeling. Her manager isn’t her doctor. Who is he to tell her she can’t work and immediately needs to take leave?

The Manager’s Perspective

The company and management love Brenda. Now that she’s in a “delicate condition” management is concerned and doesn’t want Brenda to hurt herself or her baby. Putting up drywall is hard work. What if she has a miscarriage or can’t work at the same pace she normally does? The Company wants a note from Brenda’s doctor confirming she can keep working as a construction worker. They consider assigning her to a desk job while pregnant. As for coming back after two weeks, the Company doesn’t think she’ll be ready physically or emotionally. The Company suggests she should wait at least 6-weeks to return to work.

The Dilemma

Most employers are aware of all the accommodations women may need during pregnancy, including light duty, transfer to a temporary light duty position, extra breaks, and disability leave before and after giving birth. What happens when an employee decides she wants to continue performing physically strenuous work or is ready to return to work only a few days after giving birth? Can an employer require medical clearance ensuring an employee is able to work even though she is not asking for time off or accommodations? Can she be prevented from returning to work before the 6-week post-delivery period is up? These are concerns many employers have about their employees, but should they?

The EEOC’s Prospective

According to the EEOC, despite laws, guidance and willingness to work, many pregnant women and caregivers are denied job opportunities. “Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families,” said EEOC Chair Jacqueline A. Berrien. While the Pregnancy Discrimination Act and other state laws require employers to offer accommodations and job protections, conversely these laws also protect employees from being denied employment or certain assignments if an employee can work and perform all the duties of her job. Furthermore, it is the employee and her doctor who need to make this determination, not the employer. Pregnant employees must be permitted to work if they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. Nor may an employer have a rule prohibiting an employee from returning to work for a predetermined length of time after childbirth.

The Best Solution

The best thing an employer can do is apprise an employee of all her rights and responsibilities under federal and state pregnancy laws once the company becomes aware of a pregnancy. Only engage in the interactive process and request medical certification if a pregnant employee requests accommodation. Never assume she needs accommodations or is unable to work just because she is pregnant – if you do this, you’re likely to get a discrimination lawsuit.

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