Accommodating Pregnant Employees

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees:

  •  If you have less than 15 employees (counted by names on the payroll, not by full-time equivalents), then the Pregnancy Discrimination Act and the other discrimination laws do not apply to your business.
  • If you have 15 or more employees, you have to treat the pregnant employee as favorably as you would a disabled or seriously ill employee. So if you have given your most loyal employee six weeks of paid leave to recover from surgery in the past, consider giving a similar amount of paid time off for maternity leave.
  • There is no statutorily required maternity leave if you have less than 50 employees on your payroll. The Family and Medical Leave Act (“FMLA”) doesn’t become effective until you reach that magic number.
  • Paid maternity leave is not required by federal or Texas law, even if you employ 50 or more people. The FMLA only requires unpaid leave. However, consider allowing your employees to save up and use paid time off for maternity leave so they do not have to go without a paycheck during that stressful time.
  • Write a maternity policy that says that you will reasonably accommodate a pregnant employee by looking at the individual circumstances and how other employees have been accommodated rather than just setting a standard maternity leave policy that is “one size fits all”.
  • Whatever happens, don’t get mad or retaliatory towards an employee who is pregnant.



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