In 2008 the Americans with Disabilities Act (ADA) was amended. The Americans with Disabilities Act Amendments Act (ADAAA) significantly expanded protections under the ADA. The definition of disability was expanded to include temporary impairments.
If an active impairment substantially limits a major life activity, the employee is protected by the ADAAA. The ADAAA has also expanded the definition of “Major Life Activity” to include things like digestive function or circulatory function. Other things like lifting, standing or bending can be considered major life activities.
Many common conditions related to pregnancy may qualify and require an employer to engage the employee to seek reasonable accommodations to allow the pregnant employee to continue to work or to allow her unpaid leave of absence rather than losing her job. This applies to employees that are not eligible for Family and Medical Leave Act or those that have already exhausted their FMLA eligibility.
Take these two examples:
- A pregnant employee has severe nausea (morning sickness) and can’t get to work for her morning shift. As a digestive function issue that is severe enough to impact a major life activity (in this case working), the employee may be entitled to an altered schedule, reduced hours, telecommuting, or unpaid leave of absence while the condition exists.
- A pregnant employee is told by her doctor that she can’t lift more than five pounds. Lifting is a major life activity so the employee may be entitled to accommodation such as light duty work, a temporary transfer to a job that does not require lifting or an unpaid leave of absence.
There are many other possibilities of conditions affecting a pregnant employee that can be considered severe, even if short term. If you are not sure whether a condition may be protected under the ADAAA, contact BCN services for guidance.
3 key things employers need to remember
First, if an employee indicates that they cannot perform their job due to some impairment, they do not have to use the term “ADA” or even request an accommodation. If their statement leads you to believe they may have an impairment, you need to determine if this is a potential ADA situation.
If so, it is imperative to engage the employee in a dialogue to discuss the situation and determine if there are any possible accommodations that are not an undue burden to the employer. Remember that pregnancy is a limited duration so, if nothing else, an unpaid leave of absence will not likely be considered an undue burden to the employer.
Secondly, the employer is entitled to determine whether an accommodation is a medical necessity. But be aware that the ADA limits who may contact an employee’s physician.
For example, the employee’s supervisor is prohibited from contacting the physician. Don’t risk a violation of the ADA by contacting the employee’s physician. Your BCN Services Partnership Manager or Human Resources Administrators will be able to assist you in these situations. The HR department at BCN Services has the knowledge and experience to make those communications for you to avoid any claims of interference in the employee’s ADA case.
Third, there may be more than one accommodation that could allow the employee to continue working. During the interactive dialogue, you are not required to accept the employee’s suggestion. Multiple options providing for the same outcome allow the employer to determine which accommodation should be provided.
ADAAA provisions are being revised by court decisions on a regular basis. This new legislation will continue to be interpreted by courts and will impact employers. BCN Services continues to monitor legislative changes and court rulings to provide our clients with best practice guidance.
If you have questions about whether a pregnant employee can perform essential job functions or needs accommodations, BCN Services is always available to provide advice and guidance.
Jeff Walsh, Partnership Manager