1. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy in the Workplace– Supervisor Briefing

2. © Reed Business Information, a division of Reed Elsevier Inc. Question Which law specifically prohibits pregnancy discrimination? a.Title VII b.Pregnancy Discrimination Act c.Family and Medical Leave Act

3. © Reed Business Information, a division of Reed Elsevier Inc. Answer b. The Pregnancy Discrimination Act is an amendment to Title VII and it specifically prohibits discrimination based on pregnancy, childbirth or related medical conditions. Choice a is incorrect because Title VII prohibits discrimination based on race, sex, religion, color and national origin. Choice c is incorrect because the Family and Medical Leave Act is a leave law entitling employees to 12 weeks of unpaid leave if they work for a covered employer.

4. © Reed Business Information, a division of Reed Elsevier Inc. Objectives of This Briefing This Supervisor Briefing examines the law and best practices for managing pregnant employees and understanding, preventing and responding to claims of pregnancy discrimination.

5. © Reed Business Information, a division of Reed Elsevier Inc. Objectives of This Briefing (con’t.) It covers the following topics: 1.Pregnancy Discrimination 2.Recognizing Unlawful Conduct 3.Establishing a Claim of Pregnancy Discrimination 4.Avoiding Pregnancy Discrimination in Hiring 5.Treating Pregnant Employees Fairly

6. © Reed Business Information, a division of Reed Elsevier Inc. Objectives of This Briefing (con’t.) 6.Providing Leave to Pregnant Employees 7.Understanding When Pregnancy is a Disability 8.Providing Breastfeeding Support to New Mothers 9.Avoiding Pregnancy Discrimination Claims 10.Test Yourself

7. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy Discrimination A supervisor must know how to prevent and respond to claims of pregnancy discrimination, harassment and retaliation and foster a more accommodating workplace.

8. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy Discrimination (con’t.) Employers and supervisors are prohibited from discriminating on the basis of pregnancy, childbirth or related medical conditions under the Pregnancy Discrimination Act (PDA), an amendment to Title VII.

9. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy Discrimination (con’t.) The PDA applies to private employers with 15 or more employees, including state and local governments, as well as labor organizations, employment agencies and apprenticeships and training programs.

10. © Reed Business Information, a division of Reed Elsevier Inc. Did You Know? Some state and local laws also expressly prohibit discrimination based on pregnancy and pregnancy- related medical conditions. For instance, several states consider discrimination based on pregnancy, childbirth and related medical conditions as a form of sex discrimination while other states explicitly prohibit pregnancy discrimination. In addition, several states and municipalities also explicitly require employers to provide reasonable accommodations to employees who are unable to perform their job duties due to a pregnancy-related medical condition.

11. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy Discrimination (con’t.) Broad Definition The prohibition against discrimination extends also to individuals who were pregnant in the past or have the potential to become pregnant. Example: It is unlawful to refuse to give a female employee a preferred job assignment because she informed her supervisor that she is trying to start a family.

12. © Reed Business Information, a division of Reed Elsevier Inc. Did You Know? It is unlawful under the PDA for an employer to maintain a policy prohibiting fertile women from handling hazardous chemicals in the workplace.

13. © Reed Business Information, a division of Reed Elsevier Inc. Pregnancy Discrimination (con’t.) Employer Knowledge of Pregnancy In order to be liable for pregnancy discrimination, an employer or supervisor is required to have knowledge of the employee’s or applicant’s pregnancy or a pregnancy-related condition. If the employee or applicant cannot prove that the employer or supervisor knew of the pregnancy before taking adverse action, the employee or applicant may not claim pregnancy discrimination.

14. © Reed Business Information, a division of Reed Elsevier Inc. Tip The supervisor should take care to note the date when an employee first discloses her pregnancy in her personnel file. This can be a critical fact down the road if a claim of pregnancy discrimination is ever made by the employee based on adverse action taken against the employee prior to the date her pregnancy was revealed.

15. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct Pregnancy Discrimination It is discriminatory to use pregnancy, childbirth or a related medical condition as the basis for any of the following employment actions: Hiring and firing; Compensation, assignment or classification of employees; Transfer, promotion, layoff or recall;

16. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) Job advertisements; Recruitment; Testing; Use of company facilities; Training and apprenticeships programs; Fringe benefits; Pay, retirement plans and disability leave; or Any other actions affecting the terms and conditions of employment.

17. © Reed Business Information, a division of Reed Elsevier Inc. Did You Know? It is illegal to assign a new mother recently back to work from childbirth to less desirable assignments based on assumptions that, as a mother, she is now less committed to her job.

18. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) Harassment It is unlawful to harass another individual based on pregnancy, childbirth or related medical conditions.

19. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) The following are examples of harassment based on pregnancy: Unwelcome and offensive jokes and name calling; Physical assaults or threats; Intimidation; Ridicule; and Offensive objects or pictures.

20. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) Generally, harassment based on pregnancy is any interference with work performance motivated by pregnancy, childbirth or related medical condition that is so severe and pervasive that it creates a hostile or offensive work environment.

21. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) In evaluating whether conduct will rise to the level of unlawful harassment, a court will consider the conduct, the frequency of the conduct and its severity. An employer may be liable for the conduct of supervisors, co-workers or third parties, such as vendors, if the employer maintained some level of control over the relationships.

22. © Reed Business Information, a division of Reed Elsevier Inc. Recognizing Unlawful Conduct (con’t.) Retaliation It is illegal to retaliate against an individual based on pregnancy or because the individual has complained. Examples: Retaliating against an employee for opposing discriminatory practices, filing a complaint, testifying against an employer or being involved in an investigation or litigation.

23. © Reed Business Information, a division of Reed Elsevier Inc. Tip It is important for employers and supervisors to keep thorough and complete records regarding employee performance on all employees, including pregnant employees, and carefully document any performance issues. A pregnant employee is still required to perform her job duties and will not be insulated from claims of poor performance.

24. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination An individual seeking to prove a claim of pregnancy discrimination may claim: Disparate treatment – That their pregnancy, childbirth or a related medical condition is a motivating factor in an adverse employment action; or Disparate impact – A neutral policy or practice has a significant negative impact on pregnant women.

25. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Disparate Treatment: An employer is liable for discrimination if an individual’s pregnancy is a motivating factor in an employment decision. Motive can be proved directly or indirectly based on surrounding facts and circumstances.

26. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) An employer may engage in discrimination if it fails to treat pregnant women the same for all employment-related purposes as other non- pregnant persons similar in their ability or inability to work. Employer policies that do no facially discriminate based on pregnancy may be discriminatory if they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.

27. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) The totality of the circumstances must be evaluated in light of the circumstances to see if pregnancy discrimination has occurred.

28. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) The following may be evidence of discrimination: An explicit policy or statement by a decision maker or someone influencing the decision that on its face demonstrates pregnancy discrimination and is linked to the challenged action; Closing timing between the challenged action and the employer knowledge of the pregnancy, childbirth or related medical condition;

29. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) More favorable treatment of employees of either sex who are not affected by pregnancy, childbirth or related medical conditions but are similar in their ability or inability to work; Evidence casting doubt on the employer’s explanation for the challenged action;

30. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Evidence that the employer violated or misapplied its own policy in undertaking the challenged action; or Evidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification.

31. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Disparate Impact: If a facially neutral policy has a disproportionate adverse effect on pregnant women and the employer cannot show that the policy is job-related and consistent with business necessity, the individual may be a claim for disparate impact discrimination.

32. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) An employer can prove business necessity by showing that the requirement is necessary to safe and efficient job performance. However, it will still be a violation if there is a less discriminatory alternative that meets the employer’s business needs and the employer refuses to adopt it.

33. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Disparate impact is ordinarily established by statistics showing that an employer's practice has a discriminatory effect on workers in a protected group. However, disparate impact may also be established if it could be shown that all or substantially all pregnant women would be negatively affected by the challenged policy.

34. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Examples of policies that may have a disparate impact on pregnant women: Weight lifting requirements; Light duty limitations; or Restrictive leave policies.

35. © Reed Business Information, a division of Reed Elsevier Inc. Remedies Under the PDA, an employer that discriminates against an employer or applicant because of pregnancy or engages in unlawful harassment or retaliation can be liable for the following: Establishing a Claim of Pregnancy Discrimination (con’t.)

36. © Reed Business Information, a division of Reed Elsevier Inc. Establishing a Claim of Pregnancy Discrimination (con’t.) Back pay; Reinstatement; Front pay; Compensatory damages (emotional distress); Punitive damages; and/or Other damages or remedies to make the individual “whole” including attorney fees and costs.

37. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Pregnancy Discrimination in Hiring It is unlawful to refuse to hire an individual because she is pregnant or has a pregnancy-related condition. However, an employer or supervisor may lawfully consider any limitations imposed by the pregnancy on an applicant’s ability to perform the essential job functions of the job.

38. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Pregnancy Discrimination in Hiring (con’t.) Although the PDA does not specifically prohibit an employer or supervisor from asking an applicant if she is pregnant or plans to start a family, this is generally discouraged and may be viewed as discriminatory if there is ever a claim of pregnancy discrimination.

39. © Reed Business Information, a division of Reed Elsevier Inc. Tip An employer should not assume an applicant is unable to perform certain job functions due to pregnancy.

40. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Pregnancy Discrimination in Hiring (con’t.) Interview Questions that May be Viewed as Discriminatory: Do you plan to become pregnant? When do you plan to become pregnant? Are you married or single? Do you have children or a family?

41. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly Equal Not Preferential Treatment The PDA requires that supervisors provide pregnant women with the same treatment as other individuals who are similar in their ability or inability to work.

42. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Therefore, a supervisor must treat a pregnant employee who is temporarily unable to perform her job the same as he or she treats other employees similarly unable to perform their jobs and provide them with the same modified tasks, alternative assignments, benefits and leave.

43. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Avoid Stereotypes It is unlawful to base an employment decision (i.e., hiring, firing, promoting) on a supervisor’s stereotypes or assumptions about a pregnant employee’s attendance, schedule and ability to work or level of job commitment.

44. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Even if the supervisor believes it is acting in the employee’s best interest, decisions based on stereotypes are illegal. It is also unlawful to base an employment decision on the concerns of the pregnant employee’s co-workers that she will place additional burdens on them or interfere with workplace productivity.

45. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Health Insurance and Benefits If an employer offers a health insurance plan, it is required to apply the same terms and conditions to costs covering pregnancy, childbirth or other related medical conditions as it does to medical costs unrelated to pregnancy.

46. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Light Duty: If there is direct evidence that pregnancy- related bias motived an employer’s decision to deny a pregnant employee light duty (or another reasonable accommodation), it is not necessary for the employee to show that another employee similar in the ability or inability to work was given a light duty position (or a reusable accommodation) and received more favorable treatment.

47. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) If there is no such direct evidence of pregnancy bias, an employee must show that a similarly situated worker received different or more favorable treatment than the pregnant worker.

48. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) An employee may establish a claim of discrimination by showing that she: Belongs to a protected class; Sought an accommodation; The employer did not accommodate her; and The employer accommodated others similar in their ability or inability to work.

49. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) The employer then must show there is a legitimate nondiscriminatory reason for treating the pregnant workers differently than the non-pregnant workers similar in their ability or inability to work.

50. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) The employee then has the opportunity to show that this reason is false and provide sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and the employer’s legitimate nondiscriminatory reason are not sufficiently strong enough to justify the burden such that it gives rise to an inference of discrimination.

51. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) The employee then has the opportunity to show that this reason is false and provide sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and the employer’s legitimate nondiscriminatory reason are not sufficiently strong enough to justify the burden such that it gives rise to an inference of discrimination.

52. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) Example: An employer policy of accommodating non-pregnant employees with limitations while denying similar accommodating to pregnant employees may result in a significant burden on pregnant employees and result in discrimination.

53. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) An employer’s policy restricting light duty assignments may have a disparate impact on pregnant workers. If such an impact is established, the employer must prove that the policy was job related and consistent with business necessity.

54. © Reed Business Information, a division of Reed Elsevier Inc. Treating Pregnant Employees Fairly (con’t.) As a result, light duty policies should be structured and carried out so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work.

55. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees Leave on Same Terms as Non-Pregnant Employees An employer and supervisor are required to provide leave to women with physical limitations based on pregnancy on the same terms and conditions as other employees who are similar in their ability to work.

56. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Prohibition on Forcing a Pregnant Employee to Take Leave The PDA prohibits a supervisor from requiring that a pregnant employee who is able to do her job take leave.

57. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) This is true even if the supervisor believes he or she is acting in the employee’s best interest and it would be better and safer for her to stop working. Medical and sick leave policies must be applied uniformly to pregnant and non-pregnant employees.

58. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Returning to Work After Leave If an employee has been absent from work based on a pregnancy-related condition and then recuperates, the supervisor is required to allow her to return to work if she is able to perform the essential functions of her position.

59. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Documentation If an employer requires employees to submit written documentation from a treating physician prior to granting sick leave or job modifications, the employer may require a pregnant employee to submit the same type of documentation.

60. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Family and Medical Leave Act The FMLA provides eligible new parents (including foster and adoptive parents) with up to 12 weeks of unpaid leave to care for a new child.

61. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) An employer is covered by the FMLA if it is: A private company engaged in commerce, with 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year.

62. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) A public agency, regardless of the number of employees it employs; or A public or private elementary or secondary school, regardless of the number of employees it employs.

63. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) In order for an employee to be eligible for leave under the FMLA: The employee must have worked for the employer for 12 months; The employee must have worked a minimum of 1250 hours in the 12 months prior to taking FMLA leave; and The employer must employ at least 50 employees within a 75 mile radius.

64. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Under the FMLA, leave for the birth or placement of a child must be taken within one year of the child’s birth or placement. While leave under the FMLA is generally unpaid, an employer may require or allow eligible employees to utilize accrued vacation and/or sick leave or offer other short term disability benefits for all or part of the 12 weeks of leave.

65. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Following FMLA leave, the employee is entitled to be reinstated to the same position she held prior to the leave or its equivalent. Supervisors are prohibited from discriminating or retaliating against an employee for requesting FMLA leave.

66. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Sick or medical leave policies that are capped at a predetermined number of days may have a disparate impact on pregnant women.

67. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Even if a pregnant employee has a pregnancy-related impairment that does not rise to the level of an FMLA-qualifying serious health condition, the employee may nonetheless be eligible for medical or sick leave under the employer's own policies or as a reasonable accommodation under the ADA.

68. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Maternity and Childbirth Leave An employee may be granted additional maternity or childbirth leave in order to allow her to recover from childbirth.

69. © Reed Business Information, a division of Reed Elsevier Inc. Providing Leave for Pregnant Employees (con’t.) Parental Leave If an employer chooses to provide parental leave, the supervisor must be aware that parental leave must be provided to similarly situated men and women on the same terms in order to bond and care for a child.

70. © Reed Business Information, a division of Reed Elsevier Inc. Tip A supervisor should be sensitive when discussing leave and transition with pregnant employees. It is important to communicate with pregnant employees about how to transition the work that they currently handle while they are on maternity leave. Pregnant employees should not feel that they are being permanently replaced or that they will not be able to return to their current positions at the end of their maternity leaves.

71. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability The Americans with Disabilities Act (ADA) prohibits discrimination based on disability, a history of disability or because the employer or supervisor believes the employee has a disability. The employment provisions of the ADA apply to entities that employ 15 or more individuals over a 20-week period in the current or preceding calendar year.

72. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) An individual may claim that he or she is disabled based on the following: (1)a physical or mental impairment that substantially limits one or more major life activities; (2)a record of such an impairment; or (3)being regarded as having such an impairment.

73. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) In 2008, the ADA Amendments Act expanded the definition of disability in favor of broad coverage and advised that temporary conditions could be substantially limiting. Whether an individual has a disability should be determined without regard to the positive effects medication or treatment may have on the impairment.

74. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) A pregnancy-related impairment may or may not be considered a disability depending on the particular situation. Major life activities that may be affected by impairments related to pregnancy include: Walking; Standing; Lifting ; and Operating major bodily functions.

75. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Medical Conditions Related to Pregnancy and Childbirth While pregnancy itself is not considered a disability under the ADA, pregnancy-related impairments, even those that arise during a healthy pregnancy, may qualify as disabilities for ADA purposes and give rise to the need for reasonable accommodations.

76. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) The following medical conditions related to pregnancy or childbirth may qualify as disabilities and therefore entitle an individual to reasonable accommodations under the law:

77. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Symptoms such as back pain, leg pain; Disorders such as preeclampsia (high blood pressure brought on by pregnancy) and gestational diabetes; Complications requiring bed rest; After effects of delivery; Pelvic inflammation; Carpal tunnel syndrome; Post- partum depression; and Pregnancy-related sciatica.

78. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) An impairment’s cause is not relevant in determining whether the impairment is a disability. It is likely that a number of pregnancy- related impairments that impose work- related restrictions will be substantially limiting, even though they are only temporary conditions.

79. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Requests for Reasonable Accommodations A supervisor may be required to accommodate a pregnant employee suffering from a pregnancy- related condition that constitutes a disability or limits her in a major life activity. Thus, pregnant employees may be entitled to the same reasonable accommodations as individual with disabilities.

80. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) A reasonable accommodation is a modification or change in the workplace that permits an individual to perform his or her job. If an employee requests an accommodation based on pregnancy, childbirth or related medical conditions, the supervisor should engage in the interactive process- an ongoing dialogue with the employee concerning the requested accommodation.

81. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) The supervisor will be required to provide a reasonable accommodation to the employee unless the supervisor (or employer) can establish that by granting the requested accommodation, it would result in an undue hardship or require significant difficulty and expense on the part of the employer.

82. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Examples of reasonable accommodations based on pregnancy include: Redistributing non-essential job functions or tasks the employee is unable to perform (i.e., occasional lifting); Changing how an essential or nonessential job function is performed (i.e., modifying standing, climbing, lifting or bending requirements);

83. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Modifying workplace policies (i.e., allowing more frequent water breaks or rest breaks, modifying policy on allowing food at work station); Providing modifying equipment (i.e., allowing an employee to use a stool on a factory line); Modifying work schedules (i.e., allowing an employee suffering from morning sickness to arrive late and stay later at work);

84. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) Offering telecommuting to employees suffering from pregnancy- related impairments or on bed rest; Providing additional leave under a sick leave policy; and Temporarily reassigning the employee to a light duty position.

85. © Reed Business Information, a division of Reed Elsevier Inc. Understanding When Pregnancy Is a Disability (con’t.) A supervisor may not decide to modify a pregnant employee's job duties on his or her own due to health and safety concerns for the employee. A supervisor should not assume a pregnant employee has certain restrictions or would prefer certain job modifications.

86. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers Under the PDA, lactation and breastfeeding is a pregnancy-related medical condition. A supervisor should permit an employee who is breastfeeding to address breastfeeding-related needs to the same extent as employees with other similarly limiting medical conditions.

87. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) Nursing Mothers and the Fair Labor Standards Act Under the Fair Labor Standards Act (FLSA), employers and supervisors are required to prove reasonable break time for an employee to express breast milk for up to one year after the child's birth.

88. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) Under the FLSA, an employer is also required to provide a private location, which is not a bathroom, where an employee can express breast milk. The location may be a space temporarily created for the nursing mother so long it is private and free from intrusion.

89. © Reed Business Information, a division of Reed Elsevier Inc. Did You Know? A supervisor may allow a nursing mother to utilize an empty office or conference room, lounge or break area as long as such area can be made private, is shielded from view and can be made free from intrusion of other employees.

90. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) Undue Hardship Under the FLSA, employers with fewer than 50 employees may be exempt providing breastfeeding breaks if doing so would create an undue hardship. An undue hardship is determined by looking at factors such as difficulty and expense to a specific employer as compared to its size, resources and the nature of the employer’s business.

91. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) Paid Breaks An employer is not required to pay nursing mothers for break time spent expressing milk. However, if an employer already provides paid break periods to other employees, an employee who utilizes the break period to express milk must be similarly compensated.

92. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) Breastfeeding Break Accommodations Under the Affordable Care Act The Affordable Care Act (ACA) requires employers to provide a "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk."

93. © Reed Business Information, a division of Reed Elsevier Inc. Tip In order to provide additional support to breastfeeding mothers, some employers designate a nursing mothers' room and equip it with comfortable seating and outlets to provide power to breast pumps as well as a refrigerator for storage. Doing so will foster a more family- friendly and accommodating workplace.

94. © Reed Business Information, a division of Reed Elsevier Inc. Providing Breastfeeding Support to New Mothers (con’t.) State Laws It is important to note that many states have enacted laws requiring employers to provide employees with break periods for breastfeeding, whether paid or unpaid. Such requirements should be incorporated into employment policies and employee handbooks.

95. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding a Claim of Pregnancy Discrimination The following are some best practices supervisors can implement in order to minimize the risk of pregnancy discrimination: Be proactive and develop strong policies against pregnancy discrimination and harassment; Train managers and employees on such policies;

96. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding a Claim of Pregnancy Discrimination (con’t.) Identify any workplace policies that have an adverse effect on pregnant women; Take pregnancy discrimination complaints seriously by investigating them and following up with disciplinary measures if needed; Evaluate restrictive leave polices for any disparate impact on pregnant employees;

97. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding a Claim of Pregnancy Discrimination (con’t.) Coordinate with pregnant employees to develop a plan for covering job duties during pregnancy-related absences; and Engage in a meaningful dialogue with a pregnant employee regarding accommodations for pregnancy-related impairments.

98. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1 Amy works as an advertising executive where she has a lot of responsibility and manages 2 other individuals. The past year, she had a positive performance evaluation and her manager told her that there was a good chance she would be promoted. Two months after her review, Amy tells her manager that she is trying to get pregnant. The next week she learns that her colleague Nate is going to be promoted and she will not be. Does Amy have a claim for pregnancy discrimination?

99. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1 (con’t.) a.No, because Amy only trying to become pregnant so she cannot have a claim for pregnancy discrimination. b.Yes, Amy should have received the promotion and the only reason she did not receive it is because she is trying to get pregnant. c.It depends. Just because Amy is trying to get pregnant does not automatically entitle her to preferential treatment. Whether Amy has a claim for pregnancy discrimination will depend on how Amy’s performance and reviews compare to Nate’s performance and reviews.

100. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1: Answer a.No, because Amy only trying to become pregnant so she cannot have a claim for pregnancy discrimination. b.Yes, Amy should have received the promotion and the only reason she did not receive it is because she is trying to get pregnant. c.It depends. Just because Amy is trying to get pregnant does not automatically entitle her to preferential treatment. Whether Amy has a claim for pregnancy discrimination will depend on how Amy’s performance and reviews compare to Nate’s performance and reviews.

101. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Questions 1: Rationale c. Whether Amy will have a claim for pregnancy discrimination will depend upon a factual analysis and comparison of her performance next to Nate’s performance. Choice a is incorrect because the Pregnancy Discrimination Act has broad coverage and extends protections to individuals who are currently pregnant, trying to become pregnant or who have been pregnant in the past. Choice b is incorrect because it is not an automatic assumption that Amy should have received the promotion merely because she is trying to get pregnant.

102. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2 As a stock room employee, Wendy’s primary job duty is to track the boxes that go in and out of the stock room and prepare spreadsheets tallying the information. On occasion, she is required to lift packages weighing up to 20 pounds. When she becomes pregnant her doctor provides her with a note that says that Annie can only lift up to 8 pounds. Is her employer required to accommodate her?

103. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2 (con’t.) a.No, because there are no protections for pregnant women in the workplace. b.Yes, because she can still perform the essential functions of her position. c.Yes, because pregnant women should be able to request and receive any accommodation they want.

104. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2 (con’t.) a.No, because there are no protections for pregnant women in the workplace. b.Yes, because she can still perform the essential functions of her position. c.Yes, because pregnant women should be able to request and receive any accommodation they want.

105. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2: Rationale b. Wendy can still perform her primary duty. Lifting packages is not an essential function of her position, but a marginal one. Therefore, her request to lift packages only up to 8 pounds is a reasonable request for an accommodation. Choice a is incorrect because there are protections for pregnant women in the workplace. Choice c is also incorrect because pregnant women are not automatically entitled to any accommodation that they want. The request for accommodation must be reasonable and it must allow a woman to perform the essential job functions of her position.