That appears to be the $64,000 question. Most employers and some courts believe that the answer is no. The Pregnancy Discrimination Act (“PDA”) simply requires that pregnant employees not be treated differently than non-pregnant employees for employment-related purposes. This has consistently been interpreted to mean that employers do not have to treat pregnant employees better than other employees, they just can’t be treated worse.
That interpretation may change depending on whether the Supreme Court accepts the Young v. United Parcel Service Petition for Certiorari. In that 4th Circuit case, the plaintiff argued that there was a violation of the PDA because UPS limited light duty positions to employees who were injured on the job, disabled as defined by the Americans with Disabilities Act or were drivers who temporarily lost their DOT certification.
Young acknowledges that she was not disabled, and thus not entitled to a light duty position under UPS policy. Instead, Young noted that her midwife recommended that she not lift more than 20 pounds during her “normal” pregnancy. She further alleges that despite this, pregnant non-disabled employees should be allowed to participate in UPS’ light duty position. If she’s right, that interpretation will be a global shift toward requiring accommodations for pregnant employees who are not disabled.
The Supreme Court recently asked the Solicitor General to submit a brief expressing the United States’ views on the matter. We will keep a watch on whether the Supreme Court decides to hear the case.
In the meantime, employers need to be aware if there are local or state laws that require employers to grant pregnant workers accommodations even when they are not disabled. For example, as we posted on September 25, 2013, New York City recently passed the Pregnant Workers Fairness Act, which starting January 30, 2014, will require employers to make reasonable accommodations for pregnant, non-disabled employees.