How Far Does Your Organization Need to Go to Accommodate Pregnant Worker?

In 2006, Peggy Young worked for UPS as a pickup and delivery worker while she was pregnant. Her doctor restricted her from lifting items heavier than 20 pounds during her first 20 weeks of pregnancy, and items heavier than 10 pounds during the remainder of her pregnancy.  UPS placed Young on leave without pay because, as a pickup and delivery driver, the company required her to be able pick up parcels weighing up to 70 pounds. In this article of Astronology® we discuss the Young v. UPS Supreme Court decision and what it means for organizations in the future.

Some Background Information

Although UPS has a light duty program, Peggy did not qualify because the program is only for employees in the following circumstances:

• Those with limitations resulting from work-related injuries
• Those covered under the Americans with Disabilities Act (ADA)
•  Those who had lost their Department of Transportation Certification 

Peggy applied for light duty.  Because she did not fit the three criteria, she was denied access to the program.  Eventually, she had to take unpaid leave that resulted in her losing her medical benefits. Young sued UPS based on what she felt was pregnancy discrimination. UPS argued that its policy did not discriminate due to her pregnancy and is based on workers’ compensation status.

Supreme Court Decision

The Courts rejected both parties’ arguments, noting that if a light-duty job / program is available, an employer does not have to offer it to pregnant employees. It also ruled that UPS’ workers’ compensation-based defense was faulty. The Supreme Court gave a three step approach:

• An employee can dispute that a light duty program appears to ignore pregnant employees.
• The employer can justify its exclusions if based on a “legitimate, nondiscriminatory reason.”
• The employee can contest the employer’s reasoning.  If sufficient evidence displays that the employer’s policy imposes a “significant burden” on a pregnant worker and the employer’s reasons are not strong enough to justify the employee’s burden, the employee’s claim can reach a jury.

This test leaves a lot of things open to discussion. How strong enough must the employer’s reasoning be? How do you determine what a “significant burden” is?  What is “significant” for a pregnant employee? As an organization what do you do to ensure that you are in compliance? Entrepreneur’s online website explains:

1. If you have a light duty program that excludes pregnant employees, assume it may be challenged, and if so, that the case likely will end up before a jury. The odds of winning are not good.
2. If you don’t have a light duty program, you don’t have to create one. That is, you do not have to give pregnancy a preference. Indeed, an employer that has a light duty program could conclude that, based on the Court’s decision, the program may not serve its intended purpose, and constrict or abolish it.
3. Even if an employer does not offer light duty, the organization cannot treat employees with disabilities associated with pregnancy or childbirth less favorably than those with other disabilities that similarly hinder the ability to work.  Employers should also note that the definition of disability was expanded significantly under the amended ADA, so that even temporary conditions may constitute a disability if they severely impact a major life activity. Therefore, most medical limitations associated with pregnancy or childbirth likely will be disabilities that must be accommodated. This does not necessarily mean light duty. An employer generally does not have to eliminate essential functions, only accommodate to a reasonable extent how they are achieved.
4. Employers should have a reasonable accommodation policy that makes clear that coverage of physical and mental conditions includes those associated with pregnancy or childbirth. In some states and local jurisdictions, such as New Jersey and New York City, employers may have to accommodate pregnant employees even if they are not disabled. Employers in those jurisdictions will need to make that accommodation clear as well. 

Another thing to keep in mind is what laws your state may have in regards to pregnancy discrimination. At least 12 states have enacted laws that treat pregnancy like a disability which requires employers to provide reasonable accommodations to pregnant employees. How far an organization must go to reasonably accommodate an employee can be different state to state. Astronology® readers, how has the Young v. UPS ruling affected your organization’s policies? Share your thoughts with us!

Can You Legally Terminate An Employee Who Does Not Return To Work After FMLA Leave Ends?

By guest author: pmphrblog for Portnoy, Messinger, Pearl & Associates, Inc. Tri-State area human resources and labor relations consulting firm.

If you are a private employer with 50 employees or more, you must be aware of both the

Federal and your state’s version (if any) of the Family and Medical Leave Act (FMLA), and the paperwork that goes with its administration. FMLA guarantees certain employees up to 12 workweeks of unpaid leave each year with no threat of job loss. Some states are more generous and offer higher amounts of unpaid leave. FMLA also requires that employers covered by the law maintain the health benefits for eligible workers just as if they were working.

Like any workplace regulation, there are always unusual circumstances that need to be reviewed carefully by the employer. Employers must also have a sense of how courts have interpreted the rights of the employee under these circumstances.

When assisting organizations with FMLA administration, employers often ask PMP how to handle an employee who cannot return to work after the FMLA ends. At this point, the employer is left in a quandary — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act? Before an employer does either of the above, it should analyze whether the Americans with Disabilities Act (ADA) or other workforce regulations could affect the decision. How an employer handles these requests could mean the difference between a grateful employee or an expensive lawsuit.

In order to be able to determine if you must grant additional leave as an ADA accommodation, you must first determine whether the employee’s condition qualifies as a disability under the ADA. The employer should review the request keeping these five points in mind:

• Engage the employee in an interactive process to determine how much additional time is being requested.
  

• Review the employee’s revised medical certification to see how much additional time is actually necessary.  Unlimited leave is not considered a “reasonable accommodation.”

• Review and document how the employee’s request for leave impacts your business and operations.

• Determine whether continued leave poses an undue hardship.

• Review past practices.

Employers should be very reluctant to terminate an employee solely because the employee has exhausted his or her FMLA or some other employer-provided leave. Employers should evaluate each request on a case-by-case basis, and be able to defend any decision that denies the extension of leave.

According to a recent article, FMLA lawsuits have been steadily increasing. In 2012, there were 406 new federal FMLA cases filed nationally. In 2013 that number more than doubled to 992. In 2014, there were 1,115 FMLA lawsuits filed. If you are unsure of how to interpret the FMLA, ADA, or other workplace regulations, it is prudent that you contact an HR Professional who is well versed in these laws. For a small consulting fee, you may be able to avoid a very large lawsuit. Which makes more sense – consulting or litigation? That’s a no-brainer.

This article is intended for general information only and should not be constructed as legal advice. Contact PMP with any questions regarding FMLA matters by emailing Mark@pmphr.com or calling (516) 921.3400.

About Portnoy, Messinger, Pearl and Associates:

Portnoy, Messinger, Pearl and Associates, Inc. (PMP),  the oldest labor relations consulting firm representing management on Long Island, was founded in 1964 by former union organizer and worker’s rights advocate, Murray W. Portnoy.  Initially, Murray offered human resource consulting and union contract negotiating services to a handful of clients. Today PMP has a full staff of experienced and talented human resources and labor relations consultants, labor and employment attorneys, and administrative personnel. Murray Portnoy's values and vision remain at the core of PMP's mission and principles.