Did you know that a pregnant employee who has complications may be equivalent to an employee with a disability? Recent cases hold that pregnant employees with complications may be entitled to reasonable accommodations. The complications do not need to be severe. They may include such things as temporary Post-traumatic Stress Disorder (PTSD), incompetent cervix, or high blood pressure. A physician’s restriction may be sufficient to put you on notice.
Pregnant employees with complications who use up their Family and Medical Leave Act (FMLA) leave may qualify for additional non-FMLA leave as a form of reasonable accommodation. In considering additional leave requests, if the end date for the condition is certain, an employer must evaluate whether such an accommodation can be made or presents an undue hardship. Requests for indefinite leaves are generally not considered to be reasonable.
The definition of disability under the Americans with Disabilities Act (ADA) continues to expand. Disabilities have been found for problems relating to an employee walking (“gait dysfunction”), hip replacement even when the employee has fully recovered, and other conditions which are controlled by medications. Whenever faced with a disability claim, unless it is obviously frivolous, you should treat the employee as being disabled.
You should not identify an employee as being disabled as that may cause you to have obligations even if the employee is not disabled. It is better to discuss possible accommodations based on the employee’s needs, rather than as required by the ADA.
The Equal Employment Opportunity Commission’s (EEOC) regulations state that an employer must consider assigning an employee with a disability to a vacant position as a reasonable accommodation. The good news is that an employer may enforce a best-qualified applicant policy in considering reassignment of a disabled employee to a vacant position. This means the disabled employee does not automatically obtain the position even if qualified. Rather, an employer may require the disabled employee to compete equally with other candidates and the employer may select the best-qualified candidate.
Taking the proper steps with ADA and Pregnancy Discrimination Act (PDA) cases is becoming increasingly complicated as more claims under these statutes are being filed. Always try to act reasonably and interact with the employee.
Written by Randy C. Gepp. For further information or any questions, please contact Randy at email@example.com or 678.336.7197.