Employers must make accommodations during pregnancy 

Last week, I addressed a reader question about the different types of pregnancy leave that are available to employees. This week, I want to expand the discussion to a related issue: the protections employees are entitled to when they suffer from a pregnancy-related medical condition and need some type of accommodation.

Picture Claudia, a 31-year old grocery store clerk who is six months pregnant and suffering from severe fatigue and debilitating back pain. To manage her condition, Claudia’s doctor gives her a note with some job restrictions: strict breaks every two hours, no heavy lifting, no standing for long periods.

Claudia provides the note to her manager and asks to use a stool at her cashier station. Her manager denies her request and instructs Claudia to start her pregnancy leave now because she can’t keep up with her work. For five years, Claudia has had an exemplary performance record. In the last month, however, her manager has begun to scrutinize her work and repeatedly write her up. Claudia needs her job to provide for her family, but she is afraid that she is being set up to be fired.

Unfortunately, Claudia’s situation is not unique: From 1992 to 2011, the U.S. Equal Employment Opportunity Commission estimates that pregnancy discrimination complaints increased 71 percent, and that the number of complaints are disproportionately high among low-wage earners and women of color. While the statistics are troubling, it is important to remember that pregnant employees do have important rights under the law, particularly in California.

The pregnancy disability leave law makes it unlawful for an employer to refuse to provide a reasonable accommodation for a condition related to pregnancy, childbirth or a related medical condition when such a request is made on the advice of a doctor. If you recall from last week, to qualify for the pregnancy disability leave law, your employer only needs to have five or more employees. Your employer may require medical certification supporting your need for accommodation. Then you and your employer must engage in a good-faith process to identify and implement your accommodation request.

Whether an accommodation is reasonable is made on a case-by-case basis taking into account such factors as the employee’s medical needs, the duration of the needed accommodation, and the employer’s past and current practices.

Common accommodations for pregnancy-related medical conditions may include modified job duties, modified work schedules (usually to permit early or later hours or more frequent breaks), and ergonomic modifications to a workstation. Upon childbirth and return to work, an employer also must provide mothers who breastfeed additional break time and a suitable location to express milk.

In Claudia’s case, recent changes to the regulations that govern pregnancy leave make it unlawful to force an employee to take an early leave of absence as her manger directed. Moreover, it also may be unlawful for her employer to deny her accommodation requests under the facts above.

The Fair Employment and Housing Act provides additional protections against discrimination on the basis of pregnancy or related medical conditions. An employer is prohibited from retaliating against an employee (e.g., disciplining, demoting, harassing or discharging her) because of pregnancy. Article I Section 8 of the California Constitution also prohibits discrimination on the basis of sex, and this includes pregnancy discrimination.

If you find yourself in a dispute with your employer, we recommend submitting your concerns in writing to both a supervisor and human resources. We also recommend you seek legal assistance so you can best protect and preserve your rights.

The Dolan Law Firm will be holding a seminar regarding pregnancy-leave rights in the coming weeks.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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