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AAC F A M I L Y & F R I E N D S DISCRIMINATION


that is less physically demanding than her normal duties), is the employer required under the PDA to provide it? Yes, if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. An em- ployer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.


tial treatment for pregnant workers? No. Consistent with the language of the law, the EEOC’s posi- tion is that the PDA requires only that an employer treat pregnant workers the same as it treats workers who are not pregnant but who are similar in their ability or inability to work. Tus, an employer may offer light duty to pregnant employees on the same terms that it offers light duty to other workers similar in their ability or in- ability to work. For example, if an employer’s policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty, the employer may lawfully apply the same restrictions to pregnant workers as it applies to non-pregnant workers. If an employer does not provide light duty to employees who are not pregnant, it does not have to do so for pregnant workers.


LEAVE


12. May an employer require a pregnant employee who is able to perform her job to take leave at any point in her preg- nancy or after childbirth? No. An employer may not force an employee to take leave be-


11. Does EEOC’s interpretation of the PDA create preferen-


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employees who are similar in their ability or inability to work are allowed to do so. An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the Family and Medical Leave Act (FMLA), the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment. Note that under the ADA, an employer may have to provide leave in addition to that provided under its normal leave policy as a reasonable accommodation for someone with a pregnancy-related impairment that is a disability.


14. Must an employer provide leave to bond with, or care for, a newborn (called “parental leave” in the Guidance)? Under the PDA, leave related to pregnancy, childbirth or related medical conditions may be limited to women affected by those conditions, but parental leave must be provided to similarly situ- ated men and women on the same terms. If, for example, an em- ployer extends leave to new mothers beyond the period of recu- peration from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose. In addition, the FMLA requires covered employers to provide 12 weeks of job-protected leave for covered employees to care for and bond with a newborn baby or a recently adopted child.


HEALTH INSURANCE 15. Are employers who provide health insurance benefits


cause she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interest. If an employ- ee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby’s birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.


cy-related medical leave than on other medical leave? No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Tus, an employer: • May not fire a pregnant employee for being absent if her ab- sence is covered by the employer’s sick leave policy; • May not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same require- ments on employees who seek leave for other medical conditions; • May not impose a shorter maximum period for pregnancy-


related leave than for other types of medical or short-term disabil- ity leave; and • Must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other


14 13. May an employer impose greater restrictions on pregnan-


required to provide insurance that includes coverage of preg- nancy, childbirth or related medical conditions? Yes. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. If the plan covers pre- existing conditions — as all health plans are required to do as of January 1, 2014, under the Patient Protection and Affordable Care Act — then it must cover the costs of an insured employee’s pre- existing pregnancy. If the plan covers a particular percentage of the medical costs incurred for nonpregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy- related expenses. Employers can violate the PDA by providing health insurance


that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical pur- poses. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. For ex- ample, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contracep- tives also must be covered.


Source: Questions and Answers about the EEOC’s Enforcement


Guidance on Pregnancy Discrimination and Related Issues found at http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.


COUNTY LINES, WINTER 2015


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