Quirky Question # 193:

An employee experienced complications with her pregnancy toward the end of her second trimester.  As a result of these complications, her physician placed her on bed rest for the remainder of the pregnancy.  If she carries the baby to term, this employee will exhaust her Family and Medical Leave Act leave by the time of the birth.  Are we required to give the employee additional leave after the baby is born?

Matt’s Analysis:

The answer to this question is complex because there are two different leave considerations at issue – (1) the leave while the employee is on bed rest and (2) any leave the employee may be entitled to after the baby is born – and it implicates the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), and, potentially, the Americans with Disabilities Act (ADA), in addition to whatever state laws may apply in your jurisdiction. Furthermore, employers are advised to tread very carefully in this situation, and those like it, because the Equal Employment Opportunity Commission (EEOC) recently brought renewed focus on the issues of discrimination against pregnant women and caregivers. See Press Release, EEOC, Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC (Feb. 15, 2012) (http://www.eeoc.gov/eeoc/newsroom/release/2-15-12.cfm).

As you likely know, the FMLA provides the employee with certain leave rights. Unlike the PDA or the ADA, the FMLA applies in this situation to both the pre- and post-birth leave. The FMLA requires covered employers to grant leave to employees for reasons including: (1) “a serious health condition that makes the employee unable to perform the functions of the position of such employee” and (2) “the birth of a son or daughter of the employee and in order to care for the son or daughter.” 29 U.S.C. § 2612(a).

The PDA prohibits discrimination against pregnant women. This Act applies only to the determination of the leave issue while the employee is on bed rest. The PDA requires an employer to treat the pregnant employee the same as if she were not pregnant. In the case of a request for additional leave beyond that permitted under the FMLA, an employer must treat the pregnant employee the same as it would any other employee with a medical condition that prevented the employee from working for a set period of time. If your company has a policy providing for additional leave, that leave must be offered to the pregnant employee under the same circumstances as it would be offered to any other employee with a health condition requiring leave.

Depending on the types of complications caused by the pregnancy and the extent of the bed rest restriction, an employee may also be disabled under the ADA. She will qualify as disabled if the unusual physical impairments caused by her pregnancy affect a major life activity and that major life activity is substantially limited by the impairment. Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), there were court decisions ruling both ways on the issue of whether pregnancy complications constituted a disability. Some of these cases relied on the specific nature of the limitation caused by the pregnancy complications, but other cases relied on regulations that indicated short-term impairments were not “substantially limiting.” Because pregnancy is inherently short-term, some courts found that the pregnant employee was not disabled.

Following the passage of the ADAAA, the U.S. Department of Labor (DOL) revised its regulations to be in harmony with and implement the new law. As part of these revisions, the DOL eliminated the regulations that included duration of the impairment as part of the “substantially limits” consideration. The regulations also now specifically state: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ix). In conformity with the ADAAA, the regulations also lower the standard required to meet the “substantially limits” definition. Thus it is much more likely that a pregnant employee who experiences unusual complications from her pregnancy, which limit her activities, will be “disabled” under the ADA.

In this situation, the employee’s physician has restricted her to bed rest with only short periods away from the bed to use the bathroom or to prepare a meal. This sedentary life style for, potentially, three months is sufficient to establish that she is limited in at least one major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Therefore, this employee would be considered disabled under the ADA for the duration of her bed rest.

Once it is determined that this employee is disabled, and she has asked for an accommodation, then it is the employer’s obligation to engage in the interactive process with the employee to determine whether there is a reasonable accommodation available. The EEOC has issued guidance finding that a reasonable accommodation includes permitting an employee to take unpaid leave. In this situation, given the extent of the employee’s restriction and the nature of her work, the only accommodation that is being requested is additional leave beyond that permitted by the FMLA. (For other employers, depending on the nature of the employee’s work, it may be possible to make arrangements that would permit the employee to work while she is lying in bed at home.)

When an employee may be entitled to leave under both the FMLA and the ADA, an employer should determine the employee’s leave rights under each law separately and then consider where the two laws may overlap. The first step in this situation would be to ask the employee how much leave she intended to use after the birth of her child. The typical leave is six to eight weeks. Assume for the sake of this discussion that the employee tells you that she already knows the birth will be by Caesarean section, so she will take eight weeks of leave following the birth. Thus, the total amount of leave she will take is approximately twenty weeks.

Twelve of those weeks are guaranteed under the FMLA. Part of the FMLA leave will cover the time after the birth and part of the FMLA leave will cover the time she is on bed rest. The remaining eight weeks of leave, which would be applied to the time she is restricted to bed rest, would be governed by the ADA. As the employer, you must determine whether this eight weeks of leave is a reasonable accommodation. If providing her with eight weeks of leave to accommodate her disability is going to place an undue hardship on you, then it is not a reasonable accommodation. There are a number of considerations that factor into whether an accommodation constitutes an undue hardship, so it is advisable to consult with an attorney before rejecting a requested accommodation on the basis of undue hardship.

As the foregoing illustrates, whenever the FMLA and ADA interact, there are a number of potential pitfalls for the employer. To avoid them, make sure you engage in proper communication with your employee, provide the employee with his or her full rights under the applicable laws, and, of course, consult with your attorney whenever you are uncertain about how to proceed at any particular stage in the process.