On the sixth day of Christmas my true love fell back on providing me with birds—he clearly did not get the hint that I preferred the rings. But since we are speaking about laying eggs and the miracle of child-birth (or chick birth), let us get down to what employers really should be paying attention to right now—the Pregnancy Discrimination Act.
Earlier this month, there was significant media attention regarding the Supreme Court’s hearing of Young v. United Parcel Serv., Inc., NO. 12-1226, in which the Court heard argument as to whether UPS had violated the Pregnancy Discrimination Act (“PDA”) when it offered light duty jobs as an accommodation to workers who were injured on the job but refused to extend the same accommodations to pregnant employees who had similar work restrictions. In July we discussed the EEOC’s recently updated guidance which indicated that it was the EEOC’s position that the PDA requires employers to offer light duty work to pregnant employees who need job modifications if they make light duty work available to non-pregnant employees.
During oral argument in the Young case, the portion of the PDA that was at issue was the clause that prohibits sex discrimination based on pregnancy, childbirth and pregnancy-related conditions and requires employees to be “treated the same” as non-pregnant employees for all employment-related purposes with regard to individuals with similar “ability or inability to work.” Young’s claim stemmed from UPS’s refusal to accommodate her pregnancy-related 20-pound lifting restriction (forcing her to take unpaid leave), because UPS similarly would not accommodate employees with the same lifting restrictions if the restriction stemmed from off-the-job injuries or activities. The Fourth Circuit found that UPS did not violate the PDA when it refused the accommodation, and Young appealed.
We will await the Supreme Court’s decision in Young to find out the extent of the accommodation required under the PDA. In the meantime, please dust off your current leave and accommodation policies to make sure that they are in compliance with the current standard. Moreover, be aware of the role that state laws could simultaneously play in your decisions regarding pregnant employees. If you are operating in Rhode Island, be aware that effective this year a new Rhode Island law expanded its temporary disability insurance program to provide wage replacement benefits to workers who take time to care for a family member or bond with a new child and this law expressly requires employees who take temporary leave and receive benefits under the program to restore the individual to their former or an equivalent position.