Many employers have been in this very situation. You finally a qualified candidate for a position that’s been open for a long time. So you offer her the job. She accepts. There’s only one problem: she tells you she’s pregnant. You are not happy. Now you’re back to Square One, because you have to start the whole process all over again. After all, you can’t hire someone who probably won’t be able to fulfill the essential job functions and who will be leaving soon anyway, right? Not so fast! If you pull that job offer now, you may find yourself in legal hot water. What should you do? That’s what we’re going to discuss this week, so read on…
(image from americanpregnancy.org)
This very issue was at the heart of two very recent cases, EEOC v. Brown & Brown, Case No. 6:16-cv-1326-ORL 18-DAB and EEOC v. Lifetime Fitness Civil Action No. 8:16-cv-02936-DKC. Brown & Brown just agreed to settle all allegations for a nice, round $100,000 on May 3. Similarly, Lifetime Fitness agreed to pay $86,000 to settle its case on February 23 of this year.
Why were these employers wrong? Legally, the fact that the employee is pregnant, by itself, doesn’t change anything. Before you knew the new hire was pregnant, she was qualified for the job. But, you may be thinking, “I need someone who can be available now to perform the job. I can’t be worrying that she’s going to be gone in a few months.” Well, slow down. The problem is that you’re assuming, as Brown & Brown and Lifetime Fitness apparently did–that a pregnant employee will now not be able to perform essential job functions, or will want special considerations, just because she is pregnant. You also seem to be assuming that in a few months she will be out on extended leave, or might not return after childbirth. In reality, either little or none of that may be true. (Brown & Brown’s new hire specifically said she didn’t intend to seek extended leave.) Now, I can hear you saying, “Well, that’s all well and good, but I need to know how to plan. I have a business to run. Don’t I have a right to know what to expect and to plan accordingly?”. Yes.
Let’s now talk about what you can — and should do. Aside from saying “Congratulations”, you might start with looking at your own attendance and employee leave policies. Do you have a maternity leave policy? If so, you start by acting in accordance with that policy. If not or if she isn’t eligible for maternity leave, what about any other policies you have with respect to paid or unpaid time off? Has the employee asked for any special considerations? With respect to both of these issues, time off and accommodations, you need to look at the Pregnancy Discrimination Act (PDA) (click here for review) and, possibly the Americans with Disabilities Act and Americans with Disabilities Acts Amendments Act (ADA/ADAAA).
Won’t she be entitled to time off under FMLA? Nope. Why not? Assuming you have enough employees to be subject to FMLA, she will not have been with you long enough to be eligible. Remember that an employee must have worked for their employer for at least 12 months, and must have worked at least 1250 in the 12 months preceding the beginning of the requested leave. This employee is extremely unlikely to satisfy either requirement, let alone both.
Let’s get back to the PDA and ADA/ADAAA. These laws only come into play once the employee either asks for a reasonable accommodation or there are clear enough indications to put an employer on notice that the employee will need one. For example, a pregnant employee might have restrictions on heavy lifting. If the job requires occasional lifting, this employee may ask for some temporary modification. The employee may ask for some time off. The PDA requires employers to accommodate a pregnant employee the same way they would accommodate a similarly situated non-pregnant employee. For example, if an employee sustains an injury, and s/he temporarily cannot do heavy lifting and during his/her recovery time, you do not require heavy lifting. You might then have to provide the same accommodation to a pregnant employee making the same type of request. The PDA is similar to the ADA/ADAAA in that you must engage in the interactive process (i.e. talk amongst yourselves, discuss) if your employee requests a reasonable accommodation. The scope of your obligation under the PDA is a bit less than it is under the ADA/ADAAA, however. If a pregnant employee requests an accommodation and you do not normally provide that same type of accommodation to other similarly situated non-pregnant employees you may not have to do it for the pregnant employee–unless the ADA also applies to your situation.
When might the ADA apply? If the employee is having seriously limiting pregnancy-related complications, then those conditions might be a disability under the ADA. You then need to engage in the interactive process, discuss how those conditions might limit her ability to either perform essential job functions or avail herself of benefits and privileges of employment that her co-workers enjoy, and then discuss appropriate, effective accommodations. If any of the measures discussed would be effective, and do not pose an undue hardship or safety risk, you will likely have to grant the accommodation(s). What makes an accommodation an undue hardship? That depends on the size and resources of your company, and how the requested accommodation might impact your operations — or your bottom line.
What about time off? Is that a reasonable accommodation under either the PDA or ADA? Maybe. Have you provided time off to similarly situated non-pregnant employees who did not qualify for FMLA leave or paid sick or vacation days? If not, has the employee identified a condition that is disabling within the meaning of the ADA/ADAAA? (Please note that “disability” under the ADA/ADAAA is defined very broadly). So you see where, even if you don’t offer paid maternity leave, even where your new hire may not have accrued vacation or sick leave, and even where she may not be eligible for FMLA leave she may still be entitled to some time off. The question is how much time? As you have probably guessed, the answer depends on the circumstances. It appears that both Brown & Brown and Lifetime Fitness assumed their new hires would either leave or request extended leave.
So here’s the general rule: Don’t pull a job offer when you find out a new hire is pregnant. Generally speaking you have to try to accommodate her the way you would accommodate a longer-term employee. “But my circumstances are different”, you might be thinking. In that case speak to employment counsel before you pull the offer!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
Before choosing an attorney, you should give this matter careful thought.
The selection of an attorney is an important decision.
If you find this communication to be
inaccurate or misleading, you may report it to the Committee on Attorney Advertising
Hughes Justice Complex, CN 037, Trenton, NJ