Most employers know the basic rule when it comes to handling pregnancy in the workplace: don’t treat pregnant employees differently from other employees who are similar in their ability or inability to work. But what about making adjustments to help pregnant women continue working? Does the law require employers to provide additional bathroom breaks, allow water bottles at work stations, provide stools to sit on, and give help with lifting? Making accommodations may make good sense economically – it is almost always cheaper to retain good, experienced workers than to hire new ones – and it may be the decent and proper thing to do, but can you get hauled into court if you don’t?

The law regarding pregnancy accommodation has been changing recently, with more statutes and court rulings requiring employers to make small changes in working conditions for expecting women.  Here’s what you need to know:

Where You Must Accommodate

Seven states require accommodation. This includes California, which makes it illegal for an employer to refuse to provide a “reasonable accommodation” if a pregnant employee requests one with the advice of her health care provider.

Connecticut requires employers to provide temporary leave or temporary transfers, if the expectant mother or her fetus might be harmed by continued employment. Hawaii, Louisiana, Alaska, Texas and Illinois also require some pregnancy accommodations.

If you provide accommodations to sick or injured employees, you need to provide similar accommodations to pregnant employees. For example, if you provide assistance with lifting to an employee who is recovering from back surgery or a heart attack, you need to provide assistance with lifting to a pregnant employee who needs it.

Pregnancy Considered Disability

The amendments to the Americans with Disabilities Act increased the type of conditions considered “disabilities,” which has had two effects in the area of pregnancy discrimination.

• First, because employers are now required to provide reasonable accommodations to a larger number of employees with disabilities that are covered by the law, it is more likely that employers are going to have to provide similar accommodations to pregnant women.
• Second, under the amendments even temporary disabilities now require reasonable accommodation, which means that disabling pregnancy-related conditions will now be covered by the ADA.  Conditions such as pre-eclampsia, diabetes, a back impairment, and depression, if they substantially limit a major life activity, now require accommodation.

Reactions to the Changes

Some commentators, including this one and this one, believe that this current state of the law has expanded to the extent that accommodations are now required across the board.

Others think there are too many gaps in the existing legal framework and point to the many women whose employment was terminated because of their employers’ refusal to accommodate.

Pending federal legislation, the “Pregnant Workers Fairness Act,” would require employers to make reasonable accommodations that pregnant workers need to be able to keep working and would prevent employers from forcing pregnant workers to take leave that they do not want or need when a reasonable accommodation would make it possible for them to continue to work.

What should employers do to navigate this legal quicksand? Here are a few tips:

Accommodate

If a pregnant employee asks for an accommodation, provide it to the extent it is practicable. Forcing a resignation can have far-reaching negative consequences. The company loses a good employee who was likely to return from maternity leave and continue working; note that almost two-thirds of new mothers return from leave.

Moreover, the company has sent a message to all employees that it does not take care of its own, and that message damages morale – particularly now that the workforce is 50 per cent female. This is all in addition to the legal risks that come with a refusal to accommodate.

Find an Alternative

If a requested accommodation is not possible, talk with the employee to see if there is an alternative that would allow her to continue working that would not disrupt the workplace. If it wouldn’t work to transfer her to a building with air conditioning, would it work to have her come in earlier in the day when it is cooler and to use a fan? If working part-time isn’t an option, could she split her lunch hour and combine her breaks so she can take three half-hour rests throughout the day?

The free Job Accommodation Network can provide suggestions for how to alter jobs to allow pregnant employees to continue working.

Monitor for Bias

Watch for signs of maternal wall bias among your supervisors, and address it immediately. Some supervisors believe, consciously or not, that pregnant workers and new mothers are undesirable employees and may try to force them to resign by refusing accommodations or otherwise making it difficult to work. Such actions can lead to expensive family responsibilities discrimination suits.

Training for supervisors, monitoring, and having a good complaint investigation process can keep you out of court.