If you’re pregnant, you know that it can upend your life in many ways. Being pregnant can make many ordinary tasks more difficult and make it hard to go about your business as usual – including at work. It can be excruciating to stand or sit in certain positions, and it may be necessary for you to use the bathroom, eat, or drink more frequently. Sometimes, this might make it difficult or impossible for you to do your job. What happens then?
Good news – you may be protected under the Americans with Disabilities Act (ADA), and entitled to ask for accommodations for your pregnancy-related disabilities. These can include additional bathroom breaks or breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, temporary transfers to less strenuous or hazardous work, a stool or chair, dress code accommodations such as allowing more comfortable footwear, and more.
Many pregnancy impairments are protected under the ADA
Many impairments resulting from pregnancy may be disabilities protected under the Americans with Disabilities Act (ADA), which applies to most employers having 15 or more workers. If an employee is able to perform the essential functions of her job with or without accommodation, her employer must provide reasonable accommodations to allow her to overcome impairments she experiences and due to pregnancy or childbirth. “Impairments” can include ailments ranging from nerve pain, nausea, and discomfort to life-threatening conditions such as gestational diabetes.
What are “essential functions”?
The “essential functions” of a job are the fundamental duties of a job, whether or not they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions, even with a reasonable accommodation, isn’t considered qualified for the job and isn’t protected from pregnancy discrimination.
Example: A helicopter pilot works for a tour company, where she spends three hours a day flying a helicopter, two hours on maintenance, and two hours on paperwork. Despite the fact that less than 50% of her time is spent in actual flight, it is clear that “flying a helicopter” is an essential function of her employment.
How do I get accommodations if I need them?
An employee must request necessary accommodations upon the advice of a medical provider and give notice of the requested accommodation(s). Once notice is provided, the employer and employee must engage in the interactive process, wherein they sit down and discuss what aspects need to be accommodated. The employer must provide options for accommodations, and the employee must provide input as to what will fit her needs. These solutions can be as simple, such as providing a stool and allowing the employee to take additional breaks, or more significant accomodations, including light duty options, alternative assignments, disability leave, or unpaid leave.
What if we can’t agree on an acceptable accommodation?
Whether or not an accommodation is reasonable is judged by a balancing test. Ideally, the employer and employee devise an accommodation that meets the needs of the employee without creating an undue burden, and it can be implemented as soon as possible. If an accommodation is impossible to provide or creates an undue hardship upon the company, the employer may not be required by law to provide it to the employee.
Example: The aforementioned helicopter pilot is advised not to fly during the last two months of her pregnancy and requests a temporary transfer to a less strenuous office/maintenance position or a temporary leave of absence. Depending on the circumstances, this may be reasonable (if she works for an national tour company with hundreds of pilots) or unduly burdensome (for example, if she works for a five-person operation).
An employer may not penalize an employee for requesting or using an accommodation. If you are experiencing a pregnancy-related disability, talk to an attorney today about how you can seek an accommodation.
If you believe you have experienced pregnancy discrimination in your workplace, or if you need assistance negotiating a reasonable accommodation with your employer, call the Mark Law Firm today. Our Basking Ridge, Oradell, and Newark pregnancy discrimination attorneys can help you. Contact us to make an appointment to talk with one of our family lawyers today about New Jersey pregnancy discrimination or other employment-related legal issues.
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