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It Is Dangerous For An Employer To Just Assume That Pregnant Employees Cannot Get The Job Done!

Employers put their companies and themselves at great legal risk (unnecessarily!) when they assume that their pregnant employees cannot do their job just because they are pregnant.

Of course, pregnancy can affect or limit an employee's ability to do her job in certain ways, but employers should be very careful that they do not make the blanket assumption that the pregnant employee cannot do her job.

Some employees do not reveal at the time they are interviewed for a new job that they are pregnant. Surprising to some employers, these job applicants have no legal responsibility to reveal their pregnancies before being hired. They can legally withhold that personal information.

U.S. SUPREME COURT CASE: There is an often cited U.S. Supreme Court case from 1991 (United Automobile Workers v. Johnson Controls Inc.) that involved a workplace policy barring women of childbearing age from taking jobs within Johnson Controls that exposed them to lead (lead can harm fetuses). The U.S. Supreme Court ruled that this Johnson Controls policy was both illegal and paternalistic. No one really doubted that Johnson Controls was simply trying to protect the women employees and fetuses from possible harm. Not caring about the employer's good and protective motive, the U.S. Supreme Court found that the attitude of preventing pregnant employees from doing certain jobs is illegal and discriminatory, if the only reason to limit the employee is due to her pregnancy.

COMPLICATIONS FROM PREGNANCY ARE POTENTIAL DISABILITIES: Pregnancy is not a disability under the Americans with Disabilities Act (ADA), but employers should certainly evaluate complications from pregnancy as potential disabilities under the ADA. Employers should therefore engage in the "interactive process" (required by the ADA when an employee has pregnancy-related disabilities).

Of course, the employer does not need to grant all requests from employees with pregnancy-related complications. The employer just needs to consider them. The employer should attempt to meet all requests for reasonable accommodations put forward by the pregnant employee where such requests do not result in an "undue hardship on the Company" as defined by the ADA.

INTERACTIVE PROCESS: If a pregnant employee has a medical restriction, for example, and cannot do certain aspects of her job, the employer has a legal obligation to engage in the "interactive process" to determine what can be done to allow the pregnant employee to still do her job within the limits of the medical restrictions as set forth by her doctor. Maybe the employer can transfer the pregnant employee to another position where she can safely perform her duties. Perhaps a lighter workload or different hours can be of assistance in these circumstances. The employer does not have to agree to these accommodation requests-just carefully consider them.

CAREFULLY EVALUATE IMPACT OF AN ACCOMMODATION: Under the ADA, there is no bright line between reasonable and unreasonable accommodations and between undue hardships and minimal hardships on the company. So employers have to carefully evaluate the impact of an accommodation request upon the company before the employer grants or denies the accommodation. Certain states have additional "pregnancy reasonable accommodation policies."

MANY STATES HAVE PREGNANCY ACCOMMODATION LAWS: For example, Illinois requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth. The Illinois law makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations. If an Illinois employer demonstrates the accommodation would impose an undue hardship on the "ordinary operation of the business of the employer," the employer need not provide the requested accommodation. "Undue hardship" is an action that is "prohibitively expensive or disruptive" under the Illinois law.

In view of the growing number of states with pregnancy accommodation laws, it is a wise idea for employers to have a pregnancy accommodation policy included in their employee handbook. Sometimes, the state in question actually requires that the pregnancy accommodation policy be included in the employee handbook. Additionally, employers should be sure to train their supervisors so they know how to handle requests for reasonable accommodation from pregnant employees.

Supervisors should be frequently and adequately trained not to assume that pregnant employees cannot do their jobs as they did when they weren't pregnant. This is an area where supervisors must be very aware of the legal rights of the pregnant employee.

Questions?: For assistance with evaluating a pregnancy related workplace issue or drafting a pregnancy accommodation policy, please contact Attorney Nancy Joerg at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected]

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