Archive for the ‘Legal Issues & Pregnancy’ Category

Is Pregnancy a Disability?

Thursday, June 23rd, 2011

Attorney Bernard L. Shapiro

Dr. Suzanne G. Kitchen

A Pregnant Construction Worker

Pregnant women are amazing in their endurance and strength. Without batting an eye, the majority of pregnant women continue to work right up until their due date, despite all the physical and mental changes that are occurring. They manage to juggle the same level of work, maintain a home with all the associated cooking and cleaning tasks, along with responsibility of tending to other children carrying the same fervor and dedication as when they were not pregnant.

In 28 years of obstetrical practice, my admiration and respect for pregnant women is without limits. However, during pregnancy, sometimes some women may experience symptoms, such as nausea, back pain, limited mobility, circulatory problems, or fatigue, which may affect the ability to perform job duties. When this happens, pregnant women often want to explore various options with their employer, such as making modifications to the job duties or work schedule, while others may want to “go out” on disability. Few patients and obstetricians are familiar with employers’ responsibilities and employees’ rights under federal and state employment laws so I thought this week’s blog might be a good place to broaden everyone’s knowledge. In the US, we have over 4 million pregnant women each year. With at least half of them in the workforce, I am sure you will agree that this topic is pertinent and timely.

Is Pregnancy a Disability?

Let’s start by looking at the Americans with Disabilities Act (as amended). The ADA is a civil rights law that protect people with disabilities from being discriminated against, and require the employer to make “reasonable accommodations” to help the person perform the job duties. Pregnancy, generally speaking, is not considered a disability under these laws. That’s because pregnancy (by itself) does not measure up to the definition of disability under these laws. That definition says: a person must have an impairment that substantially limits one or more major life activities.

Is there EVER a time that pregnancy can be considered a disability?

Some women experience complications caused by pregnancy, or have disabilities in addition to the pregnancy, and these women may be considered disabled under these laws. According to the Equal Employment Opportunity Commission (EEOC) “because pregnancy is not the result of a physiological disorder, it is not an impairment. Complications resulting from pregnancy, however, are impairments.”

If a pregnant woman works for an employer with 15 or more employees, and meet the definition of disability, one could initially request a job accommodation under the ADA. For example, pregnant women may need a lifting aid or an ergonomic chair, a modified schedule, performing the job in an alternative fashion (for example, while elevating the feet), and in some cases, even job reassignment. To learn more about job accommodations for women who are pregnant, or who have other types of disabling conditions, contact the Job Accommodation Network (JAN), a service of the US Department of Labor’s Office of Disability Employment Policy, or read JAN’s article here:

If a pregnant woman is not considered disabled, but has pregnancy-related limitations that affect her ability to work, how should the employer meet her needs?

The Pregnancy Discrimination Act (PDA) is an amendment to the Civil Rights Act of 1964. This civil rights law can apply to pregnant women who have typical limitations associated with pregnancy, such as varicose veins or back pain, and are not protected by the ADA. They still may need some job modifications in order to perform the duties safely and comfortably. The PDA requires an employer with 15 or more employees to treat women with pregnancy-related conditions the same as other employees with other types of temporary conditions (such as a broken bone). According to the EEOC, if an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her similarly as any other temporarily disabled employee. For example, according to the EEOC, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same. To learn more about the PDA, click here.

If a pregnant woman is forced to leave her job because of pregnancy and/or disability, does she have any measure of job protection?

The Family and Medical Leave Act (FMLA) is a federal law that applies to employers with 50 or more employees. The employee must have worked for 1 year, or 1,250 hours within that year. This law provides 12 weeks of job-protected leave, generally unpaid. So, for pregnant women whose pregnancy-related conditions are severe enough to warrant no longer working during the pregnancy—for example, hypertension or heart disease, FMLA can cover their absence from work, with job security. While many women would like to use all 12 weeks of FMLA post-delivery, sometimes it is necessary to begin using it prior.

Are there monetary or compensation benefits to help pregnant women who cannot work?

Yes, in most states there are plans, and each one is different. Five states have mandated short term disability coverage that can be used for pregnancy: CA, HI, NJ, NY, and RI. Most states will allow a pregnant woman to apply for unemployment benefits, though not every state will award payments. Contact each state’s Department of Labor to inquire about benefits for which you may be eligible: http://www.dol.gov/whd/america2.htm

Some pregnant women may work for employers that provide short-term disability plans through a private insurance plan. Sometimes this benefit is provided, though most of the time it is an opt-in program for which the employee pays a premium. If an employee has a short-term disability policy available, the employee should enquire with Personnel or Human Resources about using it to cover a leave of absence during pregnancy. Most often, such benefits can be used for any short-term condition, pregnancy included.

On occasion, a pregnant woman who is also disabled can apply for Social Security Disability Insurance (SSDI). Eligibility for that program is governed by Social Security Administration (SSA). SSA’s website http://www.ssa.gov can help people determine if and when they should file a claim for benefits. The legal description of ”disability“ varies in private insurance claims, various State programs and the Federal Social Security program. A knowledgeable attorney, working with the physician, knows the descriptions of disability under the various programs and the effects of the medical conditions. They are in the best possible position to assess and advise as to potential qualification for disability benefits.

What should a pregnant woman do if she feels she is being discriminated against in the workforce?

Pregnant women might experience discrimination in the workplace because of pregnancy or disabling condition. They have the ability to file complaints with the EEOC under the ADA or the PDA by calling 1-800-669-4000. Pregnant women who are denied leave under the FMLA can file complaints with the DOL by calling 1-866-487-9243. Statute of limitations for timely filing applies for such complaints.

Conclusion

Though pregnancy is rarely considered a disability, accommodations can sometimes be obtained by using the ADA, but more likely, job modifications can be obtained by using the PDA, and leave obtained by using the FMLA. Helping a pregnant woman obtain adjustments in the workplace that allow her to continue working is ideal, but not possible for everyone. Thus, when necessary, the obstetrician can help a pregnant woman become eligible for disability benefits by writing adequate documentation about her condition. Patients must let the obstetrician know all the signs and symptoms necessary to document the case so it can be provided to the employer and help secure job accommodations or eligibility for special benefits, such as short term disability. Also, it should be stated that pregnancy is not a guarantee of a secure position regardless of how you perform your job, in all instances. If a pregnant woman cannot perform her job properly, even with modifications, an employer has the right to terminate her position despite the fact that she is pregnant.

Thanks to my co-authors:

I want to thank Bernard L. Shapiro, an attorney in private practice in Stamford, Connecticut who specializes in the field of Social Security and other disability claims. He is Chairman of the Disability Law Committee of the Connecticut Bar Association and speaks at continuing education programs for physicians, clinicians and attorneys.

- Contact Bernard L. Shapiro at bls@ssdssilaw.com or visit his website at ssdssilaw.com

I also want to thank Dr. Suzanne Gosden Kitchen, a Senior Consultant for the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability and Employment Policy. Dr. Kitchen teaches at West Virginia University, preparing American and International students to become leaders in contemporary human resource fields. Dr. Kitchen designs disability awareness activities to educate the public, and enjoys finding new ways to promote disability etiquette in society.

- Contact Dr. Suzanne Gosden Kitchen at Suzanne.Gosden@mail.wvu.edu

Be sure to visit our fine line of natural products for pregnant women.

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Breastfeeding and the Law

Tuesday, August 10th, 2010

Breastfeeding and the LawEarlier this month, which happens to be Breastfeeding Month, the well-known model Gisele Bundchen ignited a firestorm of controversy regarding her opinion that breastfeeding should become a worldwide requirement by law.

Gisele, clearly passionate about being a new mother, may have over-reached a bit, but her heart was in the right place. She retracted her statement a few days later on her own blog, stating that she did not mean to say it should be a law but that she was just being enthusiastic and that the statement was taken out of context by the press and media outlets. I mention this because I think Gisele has advanced an important conversation regarding the workplace and expression of breast milk.

Gisele BundchinGisele Bundchen wrote on her blog. “My intention in making a comment about the importance of breastfeeding has nothing to do with the law. It comes from my passion and beliefs about children. Becoming a new mom has brought a lot of questions, I feel like I am in a constant search for answers on what might be the best for my child. It’s unfortunate that in an interview sometimes things can seem so black and white. I am sure if I would just be sitting talking about my experiences with other mothers, we would just be sharing opinions. I understand that everyone has their own experience and opinions and I am not here to judge. I believe that bringing a life into this world is the single most important thing a person can undertake and it can also be the most challenging. I think as mothers we are all just trying our best.”

http://blog.giselebundchen.com.br/en/sentido/a-importancia-da-amamentacao/

Last week I wrote about how to safely store your breast milk while working, or away from your baby, for any reason. This week, my article is about the many challenges women around the world face, both cultural and governmental, when trying to breastfeed their babies.

The month of August is Breast Awareness Month. The United States Department of Health and Human Services is sponsoring a campaign to encourage women to breastfeed. Despite all of the articles and books promoting the importance of optimizing infant health by breastfeeding, 70% of women will start breastfeeding immediately after delivery, and fewer than 20% will still be breastfeeding 6 months later. There still exist numerous cultural and legal barriers that make it very difficult for mothers to exclusively breastfeed. Women often feel nervous and embarrassed when breastfeeding in public and this will often result in abandoning breastfeeding.

A well known legal case in 1981 (Dike v. The School Board) is a perfect example of a discriminating situation that breastfeeding mothers may face.

Case Study

Janice Dike was a grade school teacher in Orange County, florida, who was banned from breastfeeding her child during her free lunch period. She claimed that her breastfeeding did not interfere with her teaching or her other school and work activities. The local court ruled against her, saying that it was illegal to breastfeed at the school. On appeal to the Fifth Circuit Court of Appeals, this decision was reversed. The decision stated that breastfeeding is a Constitutional right that cannot be restricted by the states. However, this ruling was again reversed in the case of Shahar v Bowers (1997) in which the Court stated that the Constitution does not address private conduct but rather that State laws should control a woman’s basic right to breast feed her child.

What are the current laws?

There are Federal laws and State laws that protect the rights of breastfeeding mothers and provide a socially supportive environment. Mothers must be aware of the legislation that exists in their particular state to avoid feelings of discrimination and to alleviate any anxiety they may have in public places. States vary in their protection of women.

  • Forty-four states (and the District of Columbia and the Virgin Islands) have laws specifically allowing women to breastfeed in public and private places.
  • Twenty eight states (including the district of Columbia and the Virgin Islands) have specific laws exempting breastfeeding from public indecency laws.
  • Twenty four states (including the District of Columbia and Puerto Rico) have laws that protect women when breastfeeding in the workplace.
  • Twelve states (including Puerto Rico) exempt breastfeeding women from jury duty.
  • Five states and Puerto Rico have breastfeeding education campaigns.
  • Individual states also have unique laws. Places like New Jersey and Hawaii allow a woman to seek legal recourse if she is unfairly discriminated against for public breastfeeding and states like Missouri allow breastfeeding only in certain locations and times and with appropriate discretion.
  • Women are permitted to feed in any federal owned building or property, regardless of state (passed in 1999).
  • Only Virginia allows women to breastfeed on any land or property owned by the State.

In my own state, Connecticut, there is a law that protects a woman’s right to breastfeed her child in any public place and employers must allow you to breastfeed or express milk at work, even if it is a very small firm. This means that your employer must allow you to breastfeed or express milk during your meal or break period and your employer must make a reasonable effort to provide a room or comfortable location to do this (not a toilet stall).

Federal Laws

In March 2010, President Obama signed the Patient Protection and Affordable Care Act which now requires an employer to provide reasonable break time for an employee to express milk for the purposes of nursing or expressing milk for her child for one year. The employer has no obligation to compensate the employee for this time. The employer must also provide a reasonable space to do this (not a bathroom). An employer of fewer than 50 employees is are not required to do this if it imposes undue hardship. Also, this law is not meant to preempt any state law that provides even greater protection for a nursing employee.
In the past, other bills have been proposed in Congress to try to protect breastfeeding rights that provide for tax incentives for businesses to create lactation lounges for employees, minimum standards for quality control for breast pumps, and tax deductions for breastfeeding equipment and services. However, these proposals have not been passed.

US Policy on Breastfeeding

In the larger arena, in world policy, the United States has not been considered one of the world leaders in policy to promote breastfeeding.
Important international policies in the past included:

  • The UN convention in 1989 on the Rights of the Child which was ratified by every country in the world except the United States and Somalia. This convention provided a basis for governments, international agencies and other organizations to formulate programs to provide for supporting, promoting, and protecting breastfeeding.
  • In 1989, WHO and UNICEF issued a joint statement entitled Protection, Promotion, and Support of breastfeeding: Ten Steps to successful Breastfeeding that calls on hospitals and health care facilities to adopt practices to encourage and promote breastfeeding.
  • 1990, The Innocenti Declaration was created by participants of WHO/UNICEF policy makers meeting on breastfeeding held in Florence Italy that set targets for governments to implement by 1995 for establishing national breastfeeding coordinators and committees and ensuring appropriate maternity services protecting the breastfeeding rights of working women.
  • The Baby-Friendly Hospital Initiative (BFHI) was launched in 1991 by WHO and UNICEF to call for action for all maternity services, freestanding or hospital-based, to become centers for excellence in breastfeeding support. Accreditation is granted when a center doesn’t accept free or low cost breast milk substitutes, does not provide feeding bottles or artificial nipples and has implemented the ten step program to support breastfeeding. As of 2007 there were only 56 hospitals and birthing centers in the US holding the BabyFriendly certificate.
  • The United States breastfeeding Committee was established in 1998 (USBC) which works on advocacy issues at the Federal level. This is a group of 40 organizations which promote, protect, and support breastfeeding in the United States by focusing on national policy issues. The Committee attempts to promote implementation of the Innocenti goals of 1990 for establishing a national breastfeeding committee.
  • In 2001 the United States Surgeon General issued the HHS Blueprint for Action on breastfeeding to encourage, market and support breastfeeding in the community and allow for the health care system of the US to support the training of health care professionals on the basics of lactation counseling and management within hospitals and maternity centers, and to support facilitation of breastfeeding for women who return to the workplace.

For woman facing discrimination, complaints can be filed with the National Alliance for Breastfeeding Advocacy (http://www.naba-breastfeeding.org/).

The LaLeche League International (LLLI) is also a valuable source for breastfeeding legislation. In addition, www.ncsl.org is a good resource for reviewing your particular states legislation on breastfeeding.

Conclusion

Breastfeeding a newborn infant is considered a mother’s basic human right, to provide for a child’s right to proper nutrition, health and care. The various countries have their own cultural, social, economic, and political norms, but basic protection guaranteed by government is essential to support women’s rights in this area. With recent legislation under President Obama, the United States is finally trying to catch up by providing legal and social support to improve national objectives for increasing the percentage of breastfeeding to 75% at birth, 50% at 6 months and 25% at one year of life.

Even in the US, we have such a long way to go in terms of acceptance of this very natural and beautiful practice. Please take the time to learn the facts so you can participate in conversations about breastfeeding law, whether you be at work, in a social situation, or even while helping others learn how to successfully breastfeed. If you are a physician or lactation consultant, please know that this is the most recent research available.

If anyone has any more suggestions to help mothers breastfeed longer, please post them in the comments section below and let’s get a conversation going about this very controversial topic.

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The information provided in these articles and on this website is intended for educational and informational purposes only.
This information should not be used in place of an individual consultation or examination or replace the advice of your medical professional,
and should not be relied upon to determine diagnosis or course of treatment.
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