Lighten up: pregnant employees and light-duty work

By Traci R. Gentilozzi
The Daily Record Newswire

A pregnancy-discrimination case argued last month to the U.S. Supreme Court is compelling employers to take a closer look at whether pregnant employees should be offered light-duty work, just like employees who suffer on-the-job injuries.

When decided by the Supreme Court later this year, Young v. United Parcel Service will determine whether employers are required to provide pregnant workers a light-duty work option, when prescribed by a doctor.

In Young, the 4th U.S. Circuit Court of Appeals held that UPS did not discriminate against a pregnant employee, Peggy Young, by not offering her light-duty tasks under its workers' compensation plan and instead placing her on unpaid leave.

Like many other federal courts, the 4th Circuit held that when an employer provides a light-duty option under a workers' comp policy, it does not also have to make it available to pregnant employees.

But a few circuits - including Michigan's 6th Circuit - have taken a different approach, saying if light-duty is provided to employees injured on the job, then it should be an option for pregnant workers.

Nicholas B. Roumel, an Ann Arbor plaintiffs' attorney, said employers need to realize that pregnant workers can perform most job functions. Last year, Roumel successfully argued a 6th Circuit pregnancy-discrimination case that was factually similar to Young.

"Employers need to ask whether they have any legitimate work duties to prevent pregnant women from performing their job," he said.

It is time for employers to move past the "paternalistic attitude" that pregnant employees need to be coddled, Roumel emphasized.

"Pregnant workers don't need to be treated like eggshells," he said.

According to Detroit attorney Terry W. Bonnette, who represents employers, most federal circuit courts recognize a legal distinction between light-duty restrictions for workers' comp purposes and pregnancy-related limitations.

But in light of Young, he said employers are now considering whether to eliminate workers' comp programs allowing light-duty work so they don't have to offer it to any employee, or whether to open it up to pregnant workers.

"It's a choice for employers because nothing forces them to offer workers' comp programs," Bonnette said. "Many employers are looking at their existing policies to see whether they are in compliance with Equal Employment Opportunity Commission guidelines and with the law in terms of light duty."

'Young v. UPS'

In Young, the plaintiff's job with UPS involved her lifting up to 70 pounds. But when she became pregnant, she was advised by her doctor to not lift more than 20 pounds. So the plaintiff asked for light-duty work, claiming that because UPS provided it to employees under its workers' comp policy, she should be offered the same.

But UPS said the plaintiff was ineligible for light-duty restrictions because she did not suffer a work-related injury. Instead, the company put her on unpaid leave.

The plaintiff sued, claiming UPS violated the Pregnancy Discrimination Act. The PDA, an amendment to Title VII of the 1964 Civil Rights Act, says employees disabled by pregnancy, childbirth or related medical conditions must be treated the same as other similarly situated employees.

The 4th Circuit held that UPS did not deny pregnant employees the same rights as those who met its workers' comp requirements for light-duty accommodations.

When issued, the U.S. Supreme Court's decision will provide much-needed clarity for employers, Bonnette said. "The federal law will finally be consistent among the circuits," he said.

Roumel is closely watching Young because of the case he argued to the 6th Circuit last year, Latowski v. Northwoods Nursing Center, an unpublished ruling. After the 6th Circuit remanded Latowski, the district judge stayed the proceedings pending the outcome in Young.

If the Supreme Court decides in Young's favor, Roumel said not only does it help his client, but employers across the country will be in for some drastic changes.

'Flashpoints'

Bonnette said the reason that light-duty questions arise is that pregnancy is not considered a disability, so pregnant employees do not necessarily qualify for Americans with Disabilities Act accommodations.

And in recent years, issues surrounding pregnancy and light-duty work have become a "flashpoint" for several reasons, he said.

"The EEOC recently identified pregnancy discrimination as a target area," said Bonnette, who is with Nemeth Law PC.

He pointed out that, this past summer, the EEOC issued a new regulation that says if an employer offers light-duty work for any reason, it must make the same option available to pregnant employees.

"The EEOC takes the position there is no meaningful difference and it doesn't matter why the restriction is needed," Bonnette noted.

In addition, more women are working well into their last trimester of pregnancy, he said. "We've seen an increase in the number of pregnancy-related medical restrictions presented to employers."

Moreover, the ADA's definition of disability was broadened about five years ago, so the EEOC now takes the position that a short-term injury may be a temporary disability, Bonnette said.

"This has brought into play pregnancy-related complications, which arguably may now be considered a disability that, in the past, were only a short-term condition," he said.

Minnesota is different

The Young case is important, but in Minnesota the Women's Economic Security Act has answered many of the question the case raises, said Jody Ward-Rannow of Ogletree Deakins, a national law firm. It requires accommodation for pregnant workers unless it would cause hardship. For some accommodations, including restrictions on lifting over 20 pounds, a doctor's certification is not required. The law does not require employers to create a new or additional position or to discharge an employee, transfer an employee with greater seniority, or promote an employee as a reasonable accommodation.

Additionally, the Minnesota Human Rights Act prohibits discrimination based on sex, which is defined to include pregnancy.

Other states are not so clear, although, interestingly, UPS changed its policy and Maryland changed its statute apparently in response to this case.

"We think the correct analysis is that the PDA sets a floor. There are situations where requiring small employers to grant accommodations to any employee can hinder the business' ability to operate. The question is, 'What is the accommodation the employer must provide?'" Ward-Rannow said.

Attorney Sheila Engelmeier, who represents employees, agreed that Minnesota is different. Maryland, where the case was tried, is also different now, she added.

In an email to Minnesota Lawyer, Engelmeier said, "This case would have turned out differently had it been before the court on a motion now, especially if the employee made claims under state law. Maryland's law now makes clear that an employer is obligated to reasonably accommodate pregnant people, as it would a person with disabilities. (Of course this is also true in Minnesota - under the MHRA for employers with 15 or more employees and made even more clear by last year's WESA [Women's Economic Security Act].) Maryland's new law - the Reasonable Accommodations for Disabilities Due to Pregnancy Act [Md. Code, State Gov't § 20-609] - was passed four months after the 4th Circuit's decision in Young and effective Oct. 1, 2013. Furthermore, under the ADAAA (effective Jan. 1, 2009), this employee may have qualified as a disabled person entitled to accommodation."

Continuing, Engelmeier wrote, "Accommodating pregnant or disabled employees who need help is not an onerous obligation on employers. Essentially Maryland's law (like Minnesota's) is asking employers to give employees who need a hand some help. That seems reasonable. Frankly, many employers already help employees who need assistance, whether they are disabled, pregnant or without restriction."

"Pregnant women aren't looking to make work easier," Engelmeier said. With a little planning, this kind of assistance should not be a big burden on employers, she said. "And, typically, under any state law requiring this type of accommodation provides that, when the requested accommodation is a big burden, employers do not have to meet the obligation."

Englelmeier also noted that the 4th Circuit differentiated between a pregnancy-related lifting restriction and a disability under the Americans with Disabilities Act, and said that a Minnesota Court would likely rule differently. "The limitations of pregnant workers, when limitations occur, are often very similar to the limitations of a worker disabled under the discrimination laws. It makes sense that the duty to accommodate would be similar."

A temporary condition

Bloomfield Hills attorney Sue Ellen Eisenberg, who has represented both employers and employees, pointed out the issue is not strictly workers' comp related.

"That is tantamount to saying that the pregnancy occurred off the job site and we only give light-duty work to an on-the-job insured," the private practitioner said.

"What if a man and a woman who work at same place have sex in the parking lot during work hours and she becomes pregnant - are we going to say that pregnancy is an 'injury'?" she asked. "What if there was a rape on site during work hours and the employee became pregnant?"

The distinctions do not make sense, she said. "It's not a workers' comp matter; it's a matter of a temporary disability."

And there's more involved than just 6th Circuit case law, she noted.

Eisenberg pointed to Michigan's Elliott-Larsen Civil Rights Act, which was amended in 2009 to clarify that pregnancy protections under state law are the same as those under federal law.

The ELCRA "adds another layer of protection" for pregnant workers, she said.

"It's amazing to me that in 1978 Congress passed the PDA and now, 36 years later, people are still stumbling over whether there's an adverse impact," Eisenberg noted. "It's my position that since the PDA, it has always been wrong to treat workers differently because they're pregnant."

Published: Fri, Jan 16, 2015