The recent Supreme Court decision in Young v. United Parcel Services, Inc., 135 S.Ct. 1338 (2015) has many asking about the rights of pregnant employees. There are a number of state and federal laws that may be implicated when an employee is pregnant including the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, Minnesota state leave laws, and the Minnesota Human Rights Act (MHRA). All of these laws govern the actions of employers and the rights of employees during and after pregnancy. Employers are able to avoid unnecessary exposure to liability by understanding the pregnancy discrimination laws and consulting legal counsel with questions prior to actions affecting pregnant employees.
Under FMLA, employees are entitled to 12 weeks of post-birth unpaid leave if they meet the following conditions: (1) have worked for the same employer for at least 12 months; (2) have worked at least 1250 hours in the 12 month period directly prior to the leave; (3) the employer has 50 or more employees within 75 mile radius; (4) have had, adopted, or taken in a foster child. Minnesota’s state leave law has similar requirements but reduces the number of employees needed to qualify to 21. (Minn. Stat. § 181.940). An employee that qualifies for state or federal pregnancy leave may also qualify for pre-birth leave if she has a serious health condition.
Unlike FMLA leave related to a serious health condition, parental leave may occur any time within the first 12 months after a baby is born or leaves the hospital. The employee only qualifies for the 12 weeks of leave within those first 12 months. For example, if a baby is born on January 1, a parent has until December 31 to use the total leave. The leave may start upon birth or it may start December 1. However, the 12 weeks expires at the 12 month mark. Therefore, a parent who does not use any FMLA leave until December 1 would only be able to take 4 weeks and be unable to use the remaining 8 weeks unless they have an alternative method of qualifying for more leave.
The Pregnancy Discrimination Act of 1978, which applies to employers with 15 or more employees, bars any kind of discrimination based upon pregnancy, child birth, or related medical conditions under Title VII of the Civil Rights Act of 1964. The Minnesota Human Rights Act (MHR), which applies to any employer with one or more employees, also provides protections against discrimination for a pregnant employee under its definitions of “familial status” and “sex” discrimination. Minn. Stat. § 363A.03 subd. 18 and subd. 42.
Discrimination occurs when an employee’s pregnancy, childbirth or related condition was all or part of the reasoning behind an employment decision or action. For example, a decision not to hire an applicant because she is pregnant and may miss time from work, or terminating an employee for using pregnancy leave, may qualify as discrimination under state or federal law. However, this does not prevent an employer from disciplining or terminating a pregnant employee. As with all employees, if disciplinary actions are taken based upon well documented performance issues, including regular performance evaluations, an employer make take appropriate corrective actions with reduced risks of legal action brought by the employee.
Both state and federal law require employers to provide the opportunity for a pregnant employee to request and receive reasonable accommodations. Under the ADA, employers with 15 or more employees must go through the interactive process with a pregnant employee who requests an accommodation in performing the essential functions of her job. This process requires employers to analyze and determine whether or not reasonable accommodations exist based upon the medical needs of the employee. An employer should meet with the employee and work with them to determine whether a reasonable accommodation exists and is not unduly burdensome on the employer. While going through the accommodations process, it is important that an employer treat pregnant employees the same as an employer would treat other non-pregnant workers with similar abilities or inabilities.
Minnesota law, however, goes further than federal law and requires employers with 21 or more employers to provide reasonable accommodations to any requesting pregnant woman unless it would impose an undue hardship on the employer’s business. Minn. Stat. § 181.9414. The statute also provides a list of accommodations that are always considered reasonable, do not require documentation by a physician, and are never unduly burdensome. These are: “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.” Minn. Stat. § 181.9414. Employers, however, are not required to create new or additional positions or transfer, terminate, or promote any other employee to accommodate a pregnant employee.
COMPLYING WITH LAWS IS CRITICAL
Navigating these laws can be complicated, especially in light of the potential for increased enforcement by state and federal agencies. It is critical that an employer document any efforts they make to comply with these and other employment related laws. Seeking input and guidance from knowledgeable and skilled attorneys when you make hiring, leave, accommodation, and/or termination decisions is crucial. Legal consultation prior to action reduces your risk and will protect your business. If you have any questions or a situation that might be impacted by state and/or federal employment laws, call or email the attorneys at Hansen Dordell right away to protect yourself and your business. www.hansendordell.com or 651-482-8900.
Evan W. Cordes is an associate attorney at Hansen Dordell. He joined in the fall of 2015. Evan works in the areas of workers’ compensation, personal injury, and related employment law. Having been in-house counsel at a self-insured public entity, Evan brings with him an understanding of what employers and insurers both need and want from an attorney. He works diligently to bring claims to their best resolution in a cost-effective and efficient manner for his clients.
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