Attorney Bernard L. Shapiro

Dr. Suzanne G. Kitchen

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

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