Don’t do these 3 things: Pregnancy policy costs this employer $400K

An Illinois skilled nursing facility’s pregnancy policy just cost it $400,000.

According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), Symphony Deerbrook LLC had a pregnancy policy that required its employees to tell it when they were pregnant – and further required pregnant workers to obtain a note from their doctor releasing them to work without any restrictions.

The EEOC accused the employer of compounding those alleged mistakes by denying reasonable accommodation to employees with pregnancy-related restrictions and terminating their employment – even though non-pregnant employees with similar restrictions were given accommodations.

Pregnancy policy gone bad

The EEOC’s suit accused the employer of violating the Pregnancy Discrimination Act (PDA), which amended Title VII and bans pregnancy bias. It also alleged a violation of the Americans with Disabilities Act (ADA), which strictly limits when covered employers can subject employees to medical examinations.

To end the case, the employer agreed to pay $400,000, which will be distributed among 11 employees.

The consent decree resolving the case also bars the employer from discriminating based on pregnancy going forward. In addition, the employer will no longer require pregnant workers to produce a medical note saying they can work with no restrictions.

A new owner has further agreed to provide anti-discrimination training to all employees and to post a notice about the lawsuit and settlement.

What not to do

The lawsuit’s allegations painted a picture of precisely what not to do when it comes to formulating a workplace pregnancy policy.

Let’s review the basics about pregnancy discrimination.

The PDA bans covered employees from discriminating against employees and applicants based on pregnancy, childbirth and any medical condition that is related to pregnancy.

Adverse employment decisions that are based on stereotypes and assumptions about pregnant employees violate the law.

The EEOC’s press release about the settlement of this case seems to say that a policy requiring employees to tell their employers when they are pregnant violates the PDA.

But the agency has separately and specifically said that “[f]ederal law does not prohibit employers from asking you whether you are or intend to become pregnant.”

In the same breath, the EEOC advised it is a bad idea to ask whether an employee is pregnant because doing so “may indicate a possible intent to discriminate based on pregnancy.” Of course, requiring employees to come forward with information about pregnancy without being asked goes a step further.

Regardless of this lack of total clarity from the EEOC on the point, this is an easy call: Don’t do it. It opens the door to an allegation of unlawful discrimination and/or an enforcement action.

Problem No. 2

Another big no-no that this employer allegedly was guilty of: Making pregnant employees prove via a doctor’s note that they can work without restrictions.

It has long been established under the ADA that a rigid “100% healed policy” is prohibited. Such a policy flies in the face of the idea that employers must reasonably accommodate an employee’s disability-related restrictions. Think about the effect of such a rule: If an employer could require all employees to be fully healed before returning to work, there would never be a need to reasonably accommodate employees who are left with permanent medical restrictions. But we know that an employee with medical restrictions can still be fully qualified.

A requirement that a pregnant employee be able to work with no restrictions is similarly flawed. Under the PDA, covered employers must accommodate pregnant workers just as they would accommodate non-pregnant workers who are similar in their ability or inability to work.

Another important wrinkle regarding accommodation of pregnant employees: Remember that workers with pregnancy-related impairments may separately be entitled to the provision of reasonable accommodation under the ADA, assuming that the impairment or condition is serious enough to meet the ADA’s definition of “disability.”

Possible accommodations, depending on the specific factual circumstances, might include:

• Allowing more frequent breaks
• Altering how some job functions are done, and
• Temporarily assigning the employee to a light-duty job.

So there’s your second thing not to do with respect to a pregnancy policy: Do not tell pregnant employees they cannot work unless they are fully cleared to do so without restriction.

Another strike

The final major transgression alleged in this case: The employer essentially subjected current employees to medical examinations without adequate justification.

Under the ADA, medical examinations can be required of current employees only when they are “job-related and consistent with business necessity.”

This means that employers generally can’t subject an employee to a medical examination unless they reasonably believe that 1) the employee has a medical condition that impairs their ability to perform an essential job function, or 2) the employee’s continued employment would pose a direct safety threat.

Quick recap: When putting together a policy regarding pregnancy, don’t:

1. Require employees to disclose pregnancy.
2. Require employees to produce medical documentation showing they are able to work without any restrictions.
3. Subject an employee to medical examinations or inquiries just because they are pregnant or have a condition that is related to pregnancy.