Compliance Makeover: Pregnancy Accommodations

DMEC Staff@Work

Changing Expectations for the Expectant Workforce

Pregnancy AccommodationPregnancy is one of the top reasons for leave time, whether through the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), sick leave, paid time off (PTO), or short-term disability (STD). According to 2016 benchmarking data from the Integrated Benefits Institute, pregnancies generate 28% of all new STD claims. While the actual level varies widely by industry, that average makes pregnancy as big a driver of leave and disability as musculoskeletal or behavioral health claims in many industries.

While the incidence rate for normal pregnancies has inched up nearly 10% from 2012 to 2016, the rate of complicated pregnancies has remained flat.1 In addition, disability durations for complicated pregnancies have decreased by nearly 10% during that period.1 These positive trends are driven by improved employer accommodations, said Michelle Jackson, AVP of Unum Workforce Solutions. “We have seen a marked increase in our customers’ willingness to accommodate earlier with expectant mothers to mitigate the challenges faced as a pregnancy proceeds,” she said.

Expanding Expectations

The Equal Employment Opportunity Commission (EEOC) has made discrimination against pregnant employees an enforcement priority beginning in 2013, emphasizing the Pregnancy Discrimination Act (PDA) and the ADA. The EEOC has interpreted the PDA and issued guidance that employers should treat pregnant employees as they treat other employees with non-pregnancy related temporary disabilities.

Developments like this are not hidden from employees. News outlets such as the Parents magazine and website are actively educating employees about their rights during and after pregnancy. Headlines include “what to do if you think your rights are being violated” and “where to go if you need help.”

This trend parallels the growing employee demand for paid family leave (PFL) benefits, which has historically been dominated by pregnancy, birth, and bonding leaves. Progressive corporations are adding or increasing PFL benefits to enhance their position as best places to work. Taken together, these converging trends are more than media sound bites, and may be reaching the level of a cultural tipping point.

Litigation

Although EEOC guidance is not legally binding, courts often defer to it, and high-profile litigation has at least partially upheld the EEOC’s position. In Young v. United Parcel Service (March 2015), the U.S. Supreme Court held that UPS’s accommodation policy imposed a “significant burden” on pregnant employees because the company granted accommodations to a large percentage of employees but not to pregnant employees. The court did not provide a convenient bright-line test that could identify when an employer has “sufficiently strong” reasons to justify that burden. But it did state that cost or convenience in themselves are not sufficiently strong reasons to justify disparate treatment.

“Many employers were caught off-guard by the Young decision,” said Ellen McCann, AVP and Special Counsel at Unum, in her 2017 DMEC Annual Conference presentation. Many employer accommodation policies are too narrow to comply with broader PDA mandates, she said. The reason? They grew out of siloed programs in a particular setting or type of injury, allowing disability or leave absences only for work-related injuries, for instance.

In information provided in the Young case, it was noted that UPS accommodated similarly-affected employees with a workers’ compensation (WC) injury,  an ADA-qualifying disability, or those who had lost their Department of Transportation certifications — but not pregnant employees. UPS was not the only employer that limited accommodations to employees involved with particular programs such as the ones UPS selected.

This problem of selective accommodation can be solved by focusing on job descriptions as a core element in the accommodation process. This shifts attention away from particular settings or injury types, and establishes a broader context based on the match between the employee and the job. Robust job descriptions include essential job functions and physical capacity requirements. This approach supports consistent accommodations in relation to lifting requirements.

A comprehensive job description database helps an accommodation program deliver consistency and reliability. Lacking that, employers should be quick to gather job descriptions on a case-by-case basis as needed. Unfortunately, McCann sees employers moving away from detailed job descriptions toward more generic descriptions or global grading.

Initiating an Accommodation

An effective process to initiate a pregnancy accommodation helps an employer avoid issues or misunderstandings that could alienate employees, violate the ADA, and increase litigation risks.

Michelle Jackson provided several useful employer practices as a co-presenter with McCann. Many of the practices involve advance preparation to ensure readiness for when an employee enters your office and discloses that she is pregnant.

“Be excited for your employee; celebrate and be supportive!” Jackson said. “Your first reaction is a key to setting a positive tone.” And examine yourself for any unconscious bias that “pregnancy = inability to work.” Your positive response confirms to the employee her value as a team member. “And then remember to listen to your employee,” said Jackson. This will kickoff the interactive process of accommodation to a healthy start.

And recognize that often, an employee believes the disclosure of a pregnancy is an accommodation request in itself. Therefore, a manager should have several communications practices in place:

  • Be ready to share information specific to the available leave and benefits for a pregnancy.
  • At the appropriate time, work with the employee to develop a transition and coverage plan. “Start early,” Jackson says.
  • Ensure that the essential duties are clearly outlined and documented in the job description or requirements documentation.

A manager will want to follow up with the employee throughout the pregnancy as appropriate to make adjustments to the accommodation plan, as this is not a “one-and-done” process. “An employee may have challenges mid term with her schedule, the environment, or physical demands. These same challenges could resolve or improve as the pregnancy continues, so frequent check ins and adjustments are needed” advises Jackson. The manager’s ability to offer flexibility in scheduling, periodic rest, worksite accommodations, and slight modifications to dress or food policies could make the difference in keeping the expectant mother at work longer.

Conclusion

The need for pregnancy accommodations is virtually assured in most workplaces. Successfully initiating an accommodation can prevent blunders that may greatly increase the downside risks for employers. In the moments after an employee discloses a pregnancy, advance preparation and a positive attitude are the keys to success.

References

  1. McCann E, M Jackson, When Your Workforce Is Expecting. 2017 DMEC Annual Conference presentation, figures from the Unum book of business for large employers with more than 2,000 lives covered.