Whether employers have to provide the same accommodations to pregnant employees as injured employees is a hotly debated and unsettled question. Earlier this year a federal appellate court rejected an employee’s claim that her employer (UPS) violated the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) by refusing to provide her with “light duty work” while she was pregnant – the same light duty work that the employer must provide to injured (on the job) employees under the ADA. The court held that an employer complies with the PDA as long as it treats pregnant workers and nonpregnant workers alike, and that an employer does not have to accommodate an employee who gets pregnant outside of the workplace – as is presumably always the case – when it would not have to accommodate an employee who, for example, injures his back while outside of the workplace.

The employee is now trying to get the Supreme Court to hear the case, and the Court this week called for the U.S. to file a brief outlining the government’s position.  Many people feel that the government (and specifically the EEOC) would like to extend employment protections for pregnant employees and that a brief submitted by the U.S. will call for just that.

While the Supreme Court decides to take only a very small portion of the cases that come its way, the Court’s call for a position brief by the government signals potential interest in granting the employee’s petition for certiorari, setting up a possible future ruling by the highest court as to the accommodations employers must provide to pregnant employees.

Because the law is not yet settled by the high court, employers should carefully consider accommodation requests by pregnant employees (as well as corporate accommodation policies) and discuss such matters with counsel.