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State Laws Protecting Pregnant Workers Fill Gaps in Federal Law

Oct. 26, 2022, 9:15 AM

Thirty states exceed federal mandates on accommodating pregnant workers, a response to court rulings that created questions about what’s required.

The added state requirements are giving large companies with employees spread across the country a complex compliance task. They can either tailor their employment policies to each state in which they employ people, or implement a single policy that takes into account all state requirements.

If they pick the latter approach, it means some employees receive benefits beyond what the laws in their particular states demand, said King & Spalding LLP partner and employment specialist Amanda Sonneborn. “It’s a cost question. It’s a finance question for a company about whether money is better spent on administration or on applying one single approach,” she said.

Two federal laws—Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Discrimination Act (Pub. L. No. 95-555), and the Americans with Disabilities Act (Pub. L. No. 101-336)—protect workers who were pregnant, are pregnant, or might be pregnant in the future from discrimination in the hiring, application, and selection process.

Litigation in the past five years narrowed when pregnant workers qualified for workplace accommodations. Several court decisions, for instance, ruled pregnant workers didn’t qualify for temporary transfers to internal “light duty” jobs when their non-pregnant colleagues did, employment lawyers said.

Now employers are left guessing about what’s required and whether a particular state has upped the ante on what they need to do.

“It’s not just a problem for the pregnant employee, it’s a problem for the employer. The employer is left guessing where the line is when it comes to disability” and when they need to accommodate a pregnant worker, said Cynthia Thomas Calvert, who advises employers as the principal of Workforce 21C, a compliance consulting firm. “Employers want to have certainty.”

States Define Accommodation

Twenty states rely on federal statutes to construct pregnancy-related disability policies. The other 30 exceed federal standards regarding the treatment of pregnant workers, according to a Bloomberg Law analysis.

Those 30 states typically require qualified employers to make reasonable pregnancy-related accommodations for both applicants and employees unless they can demonstrate those accommodations would impose undue hardship.

In California, for instance, laws affecting pregnant workers apply to companies with five or more employees, while the federal standards apply to companies with 15 or more employees, said Laura Reathaford,a Lathrop GPM LLP partner. “The scope of the federal law is not as broad,” she said.

California’s statute is typical. On the advice of the employee’s physician, employers are required to grant an employee’s request for reasonable accommodation due to a condition related to pregnancy, childbirth, or related medical conditions. The statute also prohibits employers from retaliating against employees requesting accommodations.

Reasonable accommodations in state laws like California’s include increased bathroom or rest breaks, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.

Employers in several states are required to make a reasonable effort to transfer a pregnant employee to a temporary position if the employee’s current position can cause injury or put the pregnancy at risk.

Some states, including Illinois, require companies to provide employees a private space to express milk other than a bathroom. Other states generally exempt businesses with a small number of employees from the requirements, but not all—Hawaii’s law applies to any business with one or more employees.

Be Generous

Employment lawyers say companies should consider providing benefits that exceed both federal and state requirements to ensure legal compliance and to burnish corporate reputations. That can pay dividends in retention and recruiting efforts.

“Being able to accommodate your employees is going to be cost effective in the long term,” said Calvert, who also works with employees as a senior adviser at the University of California Hastings College of the Law.

It makes sense to be expansive when considering how to accommodate pregnancy in the workplace.

Two additional federal laws that affect pregnant workers are the Family and Medical Leave Act, which provides 12 weeks of unpaid, job-protected leave for the birth of a child, and the Fair Labor Standards Act, which requires employers to give reasonable time breaks to employees so they may express breast milk.

Both Title VII and the ADA also protect workers against retaliation.

To contact the reporter on this story: Stephen Joyce in Chicago at sjoyce@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Laura D. Francis at lfrancis@bloomberglaw.com