Two federal laws currently protect workers who were pregnant, are pregnant, or might be pregnant in the future from discrimination in the hiring, application, and selection process: Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Discrimination Act, and the 1990 Americans with Disabilities Act.
However, in response to court rulings that created questions about what’s required of companies in regards to pregnant workers, 30 states have passed laws that currently exceed those federal mandates on accommodation. The other 20 states rely on federal statutes to construct pregnancy-related disability policies, according to an analysis by Bloomberg Law.
Those 30 states that exceed federal mandates in general require that qualified employers make reasonable pregnancy-related accommodations, both for applicants and employees, unless they can demonstrate that those accommodations would impose undue hardship on the employer.
For instance, in California, laws affecting pregnant workers apply to companies with five or more employees, while the federal mandates apply to companies with 15 or more employees. The federal law is not nearly as broad.
These differences can be incredibly significant. In the case of California, for example, 91% of workers are employed by businesses with five or more employees. More than 10% of these workers would lose the state’s more expansive pregnancy accommodations were it to instead follow federal mandates.
California’s reasonable pregnancy accommodations include increased bathroom or rest breaks, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.
The different state requirements, however, have been the source of headaches for employers, especially larger companies with employees spread across the country. These employers can choose to either tailor their employment policies to each state in which they employ people – which can cost time and money – or they can implement a single, more generous policy that takes into account all state requirements.
If companies choose to go the more generous route, some employees will necessarily receive benefits beyond what the laws in their particular states require. “It’s a cost question,” said King & Spalding LLP Partner and employment specialist Amanda Sonneborn. “It’s a finance question for a company about whether money is better spent on administration or on applying one single approach.”
It’s also an important legal question for employers. “The employer is left guessing where the line is when it comes to disability” and when they need to accommodate a pregnant worker, said Cynthia Thomas Calvert, who advises employers as Principal of the compliance consulting firm Workforce 21C. “Employers want to have certainty.”
In the end, perhaps the safest bet is to err on the side of generosity. Employment lawyers suggest companies should seriously consider providing benefits that exceed both federal and state requirements in order to both ensure legal compliance and strengthen corporate reputations. Those benefits will like end up paying dividends in the future in retention and recruiting efforts.