The Supreme Court recently heard oral argument in Young v. UPS, a case that could drastically impact accommodation policies for pregnant employees. Up until now, courts widely held that employers could offer light-duty assignments to a limited class of employees, for example, only those returning to work following an on-the-job injury. Peggy Young claims that the Pregnancy Discrimination Act (PDA) prohibits employers from differentiating between on-the-job and off-the-job conditions when determining if an employee should receive a light duty accommodation.

Young worked as an air driver for UPS, a job for which the essential functions include the ability to lift packages of up to 70 pounds. After Young became pregnant, her doctor determined that she should not lift more than 20 pounds. Consequently, UPS informed Young that, given her restriction she could not work as an air driver. Moreover, she was ineligible for a light-duty assignment under UPS’s established policies.

At the time this suit was filed, UPS provided Temporary Alternative Work (TAW) pursuant to its collective bargaining agreement to (1) drivers injured on-the-job; (2) drivers with ADA-qualifying disabilities; and (3) drivers unable to pass the commercial drivers license exam. UPS determined that Young’s pregnancy-based restriction did not fall into one of those categories; therefore, UPS denied her requested light-duty accommodation. The district court and the Fourth Circuit agreed that UPS’s decision was legally permissible.

In her appeal before the US Supreme Court, Young argued that UPS’s policy runs afoul of the PDA, because she was not “treated the same” as the employees covered by UPS’s three categories. The PDA requires that pregnant women “shall be treated the same for all employment-related purposes.” Young’s interpretation of the PDA would require an employer to extend light duty to pregnant employees whenever it offers light duty to another employee, even just one, to treat the pregnant employee “the same.” UPS, however, defended its treatment of Young by maintaining that she was treated the same as other similarly situated employees (both pregnant and not pregnant)—employees with off-the-job injuries who were also ineligible for accommodations.

Unfortunately for UPS, in July 2014 the EEOC issued Enforcement Guidance on Pregnancy Discrimination and Related Issues that make clear that the EEOC believes UPS’s policy is unlawful. This guidance forbids relying on a policy that offers light-duty accommodations solely to workers injured on the job:

“A pregnant worker may establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work.. . . Therefore, if an employer’s light duty policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work”

Taking note of the EEOC’s changes, UPS will begin providing light-duty accommodations to pregnant employees with physical restrictions to the same extent as employees with on-the-job injuries. It maintains that this new policy is not mandated by the PDA but will “aid operational consistency,” because many states are now mandating pregnancy accommodations.

The Court will issue a decision in the coming months that should make clear employer’s obligations in this arena. In the meantime, however, in light of the EEOC’s recent changes and many states promulgating legislation on this issue, it may be time to re-examine your company’s light duty policy and whether you need to apply it to pregnant workers.