Employment Law Blog

News, trends and analysis in employment law and HR

May 25, 2018

Q&A: Leave is last resort for pregnant worker with lifting restrictions

Q&AHarassment & DiscriminationLeave Laws 

Question: We have a pregnant employee who just notified us she has lifting restrictions for the remainder of her pregnancy. Her current position requires consistently lifting 40 pounds, but she says she can’t lift more than 10 pounds. Can we put her on leave for the rest of her pregnancy?

Answer: Not so fast. You should proceed with caution when an employee informs you she is pregnant and unable to do her regular job. First evaluate whether you are required by law or company policy to accommodate those limitations. State laws in California and Washington provide specific rights for pregnant workers to be accommodated. It’s less clear under federal law, but the U.S. Supreme Court has ruled that a pregnant worker can prove discrimination under the federal Pregnancy Discrimination Act by showing that an employer’s policy on light duty imposes a significant burden on pregnant workers compared to non-pregnant workers. Next evaluate whether you can ask for medical documentation to support the work limitations. Washington’s law, the Healthy Starts Act, which took effect on July 23, 2017, prohibits asking pregnant workers for medical documentation of the need for extra restroom breaks; an exception to a no food or drink policy; seating; or limits on lifting over 17 pounds (see our prior newsletter article for more information).
 
The last resort, if accommodation isn’t required or would be an undue hardship, is to consider a leave of absence. If the employee doesn’t have available leave or doesn’t qualify for any state or federal protected leaves, then you should treat that employee as you do other employees who need leave for temporary disabilities. Under the federal Pregnancy Discrimination Act, it is illegal for an employer with 15 or more employees to discriminate against a woman because she is pregnant, might become pregnant, or has been pregnant. So, you need to treat the pregnant worker the same (or better) than you treat other similarly situated employees with similar restrictions. If your current leave policies are so restrictive that they unfairly burden pregnant workers when compared to non-pregnant workers, then you may need to modify those policies. Consult with your Vigilant employment attorney prior to granting or denying the pregnant employee’s requests. For more information, see Vigilant’s Legal Guide, Pregnancy and Disability.

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