Employee Rights: What to Know When Working While Pregnant

Pregnancy discrimination is a form of workplace discrimination perpetrated against pregnant individuals and shouldn’t go unnoticed. Pregnant workers and job-seekers should not only be aware of what qualifies as pregnancy discrimination but also what their rights are as workers under state and federal employment law. Here’s what you need to know.

What is Pregnancy Discrimination?

Per US Department of Labor, “Pregnancy discrimination involves treating an individual—an applicant or employee—unfavorably in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), and any other terms or conditions of employment.”

Pregnancy discrimination is faced not only by pregnant employees but by people who are interviewing for jobs while pregnant. Common examples of pregnancy discrimination at work include, but are not limited to:

  • Harassing an employee with inappropriate comments about their pregnancy at work
  • Asking a person about their pregnancy status during a job interview
  • Refusing to hire a pregnant job applicant for the sole reason that they are pregnant
  • Terminating an employee because of their pregnancy status
  • Not giving a pregnant person unpaid time off for necessary medical appointments
  • Not offering reasonable accommodations for pregnant and postpartum workers
  • Not offering job-protected, unpaid maternity, or parental leave
  • Failing to hold a worker’s job while they are on maternity or parental leave

Pregnancy Labor Laws and Worker Rights

Pregnant workers and people searching for a job while pregnant are entitled to a number of legal protections under Federal and state law. Knowing your rights as a pregnant employee under these anti-workplace discrimination laws is essential for workers who are planning a pregnancy, are pregnant and working, are looking for a job while pregnant, or plan to become pregnant in the future.

The Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) of 1978 is a Federal law stating that people “affected by pregnancy, childbirth, or related medical conditions shall be treated the same […] as other persons not so affected” at workplaces with 15 or more employees. In other words, it’s unlawful for an employer to harass pregnant workers, or to base workplace decisions like hiring and firing, promotions, or pay solely on the basis of a worker’s pregnancy status or ability to become pregnant.

However, the language of the bill refers to equal, not equitable, treatment; it doesn’t assert any legal position on whether employers must provide pregnant workers with additional accommodations as a necessary measure against pregnancy discrimination. Pregnant employees could only legally insist on accommodations under the PDA if workers with other, non-pregnancy-related medical conditions were being given similar accommodations.

The Americans With Disabilities Act

To compensate for the lack of accommodation-related guidelines in the PDA alone, the Equal Employment Opportunities Commission (EEOC) released new Federal guidance to further eliminate workplace discrimination based on pregnancy in July of 2014. This guidance is based upon both the PDA and the Americans with Disabilities Act (ADA), the latter of which qualifies on the basis that pregnancy is a medical condition.

With this guidance, pregnant workers are entitled to accommodations under the ADA, under which certain pregnancy-related conditions and side effects may qualify as a short-term disability.

As stated by the EEOC, “A condition meets [the definition of ‘disability’ per ADA standards] if it would, when left untreated, ‘substantially limit’ one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions).”

A few examples of reasonable accommodations for pregnant workers include:

  • Providing additional breaks or a modified work schedule
  • Re-delegating non-essential physical labor
  • Relocating a workstation to accommodate physical needs
  • Offering unpaid leave for medical appointments
  • Adding a chair to a pregnant worker’s workspace if not already present

The Family Medical Leave Act

As it relates to pregnant workers, the Family Medical Leave Act (FMLA) is a Federal labor law entitling qualifying employees to take up to twelve workweeks of unpaid, job-protected parental leave per every 12 month period for childbirth and to care for the newborn child within one year of birth.

Depending on state labor laws and employer policy, workers may be able to use FMLA in conjunction with paid sick leave.

Private employers with fewer than 50 employees are not covered under FMLA, however pregnant employees are protected by the PDA and ADA should they choose to use sick leave as a substitute when FMLA does not apply.

The Nebraska Fair Practice Employment Act

On a state level, workers in Nebraska are protected against discrimination based on pregnancy by the Nebraska Fair Employment Practice Act (NFEPA) in section 48-1111, which reads: “Except as otherwise provided in the Nebraska Fair Employment Practice Act, women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of employee benefits, as other persons not so affected but similar in their ability or inability to work, and nothing in this section shall be interpreted to provide otherwise.”

FAQ for Pregnant Workers

Do you have to disclose pregnancy at a job interview?

No, you do not legally have to disclose your pregnancy during a job interview. Doing so is a personal choice. Even after you are employed, there is no point at which you are legally obligated to disclose your pregnancy. On a practical level, telling your employer about your pregnancy only becomes necessary when it will impact your ability to work, and the time comes to discuss reasonable accommodations.

When can you take maternity or parental leave?

If you are taking parental leave of absence or maternity leave using FMLA, you can do so any time during your pregnancy so long as it lasts no longer than 12 weeks and concludes before the child’s first birthday.

Can you lose your job while on maternity leave?

Before returning to work after maternity leave or parental leave, workers should know it is unlawful for your employer to take punitive measures or make changes to your work status as a result of your absence.

What should you do if you have faced pregnancy discrimination?

If you are a pregnant worker and suspect you have been facing pregnancy discrimination in the workplace, contact the legal experts at Dyer Law to discuss your circumstances and options.

At Dyer Law, our clients are like family to us. We are dedicated to fighting for you and going the extra mile. Want to learn more about your rights as a worker? Visit our Employee Rights page.

Pregnancy discrimination is a form of workplace discrimination against pregnant individuals that shouldn’t go ignored. Pregnant workers and job-seekers should be aware of what qualifies as pregnancy discrimination and what their rights are as workers under state and Federal employment laws. Here’s what you need to know.

  • What is Pregnancy Discrimination?
  • Pregnancy Labor Laws and Worker Rights
  • FAQs for Pregnant Workers

What is Pregnancy Discrimination?

Per the Equal Employment Opportunities Commission (EEOC), pregnancy discrimination is the act of treating a woman (an applicant or employee) unfavorably because of pregnancy, child birth or a medical condition related to childbirth in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), and any other terms or conditions of employment.

Pregnancy discrimination is faced not only by pregnant employees but by people who are interviewing for jobs while pregnant. Common examples of pregnancy discrimination at work include, but are not limited to:

  • Harassing an employee with inappropriate comments about their pregnancy at work
  • Asking a person about their pregnancy status during a job interview
  • Refusing to hire a pregnant job applicant for the sole reason that they are pregnant
  • Not giving an employee a promotion or a raise in pay because they are pregnant
  • Terminating an employee because of their pregnancy status
  • Not giving a pregnant person unpaid time off for necessary medical appointments
  • Not offering reasonable accommodations for pregnant and postpartum workers
  • Not offering job-protected, unpaid maternity, or parental leave
  • Failing to hold a worker’s job while they are on maternity or parental leave

Pregnancy Labor Laws and Worker Rights

Pregnant workers and people searching for a job while pregnant are entitled to a number of legal protections under Federal and state law. Knowing your rights as a pregnant employee under these workplace anti-discrimination laws is essential for workers who are planning a pregnancy, are working while pregnant or are looking for a job while pregnant.

The Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) of 1978 is a Federal law stating that people “affected by pregnancy, childbirth, or related medical conditions shall be treated the same […] as other persons not so affected” at workplaces with 15 or more employees. In other words, it’s unlawful for an employer to harass pregnant workers, or to base workplace decisions like hiring and firing, promotions, or pay solely on the basis of a worker’s pregnancy status or ability to become pregnant.

However, the language of the bill refers to equal, not equitable, treatment; it doesn’t assert any legal position on whether employers must provide pregnant workers with additional accommodations as a necessary measure against pregnancy discrimination. Pregnant employees could only legally insist on accommodations under the PDA if workers with other, non-pregnancy-related medical conditions were being given similar accommodations.

The Americans With Disabilities Act

While pregnancy itself is not a disability, pregnant workers and job applicants are not excluded from the protections of the ADA for women who suffer from pregnancy-related medical conditions that cause impairments. Prior to 2008, some courts held that medical conditions related to pregnancy generally were not impairments within the meaning of the ADA. In 2008, Congress passed the ADA Amendments Act (ADAAA) which among other things, expanded the definition of disability and resulted in coverage for a number of pregnancy-related medical conditions. In June of 2015, the Equal Employment Opportunities Commission (EEOC) released new Federal guidance to further eliminate workplace discrimination based on pregnancy and better define what reasonable accommodations are available under the ADAAA.

With this guidance, pregnant workers are entitled to accommodations under the ADA, under which certain pregnancy-related conditions and side effects, such as anemia, sciatica, carpal tunnel syndrome, gestational diabetes, high blood pressure or preeclampsia, nausea, swelling and depression, may qualify as a temporary disability. As stated by the EEOC, “A condition meets [the definition of ‘disability’ per ADA standards] if it would, when left untreated, ‘substantially limit’ one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions).”

A few examples of reasonable accommodations for pregnant workers include:

  • Providing additional breaks or a modified work schedule
  • Redistributing non-essential physical labor or job functions
  • Relocating a workstation to accommodate physical needs
  • Offering unpaid leave for medical appointments
  • Providing or modifying equipment and devices, like adding a chair to a pregnant worker’s workspace
  • Temporary assignment to a light duty position

The Family Medical Leave Act

As it relates to pregnant workers, the Family Medical Leave Act (FMLA) is a Federal labor law entitling qualifying employees to take up to twelve workweeks of unpaid, job-protected parental leave per every 12 month period for childbirth and to care of a newborn child within one year of birth. Depending on state labor laws and employer policy, workers may be able to use FMLA in conjunction with paid sick leave. Employees who work for private employers with fewer than 50 employees are not covered under FMLA, nor are employees who have worked for an FMLA covered employer for less than a year.

The Nebraska Fair Practice Employment Act

On a state level, workers in Nebraska are protected against discrimination based on pregnancy by the Nebraska Fair Employment Practice Act (NEFEPA) in Neb. Rev. Stat. §48-1111, which reads: “Except as otherwise provided in the Nebraska Fair Employment Practice Act, women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of employee benefits, as other persons not so affected but similar in their ability or inability to work, and nothing in this section shall be interpreted to provide otherwise.”

On April 13, 2015, Nebraska amended the NEFEPA to add more protections for pregnant workers by requiring reasonable accommodations for employees with known physical limitations due to pregnancy or childbirth. In doing so, Nebraska became one of a small number of states that require a greater duty to accommodate pregnant workers than that imposed by the PDA or ADA. Section 48-1102(11) enumerates specific accommodations that must be made:

Reasonable accommodation, with respect to pregnancy, childbirth, or related medical conditions, shall include acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk.

These reasonable accommodations are only limited by the employer’s ability to demonstrate that a requested accommodation would pose an undue hardship that would “require significant difficulty or expense.”

FAQs for Pregnant Workers

Do you have to disclose pregnancy at a job interview?

No, you do not legally have to disclose your pregnancy during a job interview. Doing so is a personal choice. Even after you are employed, there is no point at which you are legally obligated to disclose your pregnancy, unless it is time for you to give notice of your need for family medical leave as required by the FMLA and in accordance with company policy. On a practical level, telling your employer about your pregnancy may also become necessary when it will impact your ability to work, and the time comes to discuss reasonable accommodations.

Can my employer punish me for seeking accommodations or reporting pregnancy discrimination?

No, it is illegal to retaliate against an employee for seeking protection under the law or reporting pregnancy discrimination to the company, the NEOC or the EEOC. Types of illegal retaliation include but are not limited to being treated differently than other employees, harassment, disciplinary action, poor performance reviews, demotions, failure to promote and termination.

What should you do if you have faced pregnancy discrimination or retaliation?

If you are a pregnant worker and suspect you have been facing pregnancy discrimination in the workplace, contact the legal experts at Dyer Law to discuss your circumstances and options.

At Dyer Law, our clients are like family to us. We are dedicated to fighting for you and going the extra mile. Want to learn more about your rights as a worker? Visit our Employee Rights page.