A writer and lawyer, whom I respect a great deal, is Robin Shea of Constangy, Brooks, Smith & Prophete, LLP. She is a specialist in ADA issues. In a recent piece called The ADA: Four issues to watch in 2018, she discussed four issues that employers need to pay attention to in the coming year. She said that employers need to be on top of coordinating with the FMLA, medical marijuana, wellness programs, and pregnancy under the ADA. It is this last issue in particular that caught my eye.
The Supreme Court heard a case in 2015, the decision on which, required employers to pay attention to their responsibility to make reasonable accommodations for pregnancy and pregnancy-related conditions. She said:
Employers with employees who need pregnancy accommodations should use what they’ve learned from making reasonable accommodations under the ADA: specifically, be open to making accommodations, engage in the interactive process with the employee, feel free to choose the least expensive/least disruptive accommodation that is still effective (allows the employee to perform the essential functions of the job), and generally treat the pregnant employee who needs accommodation the same way you would treat an employee with a disability or work-related injury.
This should not be any surprise to HR folks. We have probably all known women or known of women, who have had complications with pregnancies that have prevented them working to their fullest capacity. It is this issue that requires an employer’s attention. As Robin points out, pregnancy is more than just the nine months a woman carries the baby, as far as the courts are concerned. According to Shea pregnancy includes “pre-pregnancy (trying to get pregnant, trying not to get pregnant, contraceptive use, fertility treatments), gestation (including miscarriages and elective abortions), and postpartum and lactation.” It is with these issues that an employer must be sensitive to the need for an accommodation.
What to do
If you have a pregnant employee or an employee who is having issues with getting pregnant, wanting to be pregnant, or post pregnancy then you need to pay attention to the need to accommodate that employee in her times of trouble. You need to:
- Have that discussion
- Document that you had the discussion
- Decide on an accommodation
- Communicate with the employee on the decision
- And be prepared to continue talking if the decision is disputed.