Pregnant employees are often just like other employees: willing and able to be productive and happy to be employed now and in the future.

Nevertheless, accommodating the needs of pregnant employees can be tricky. Employers need to be certain that they are complying with both the Americans with Disabilities Act as well as the Family and Medical Leave Act (if applicable) as they make decisions regarding their pregnant employees.

Some aspects of pregnancy and employment to keep in mind:

  • Maintaining a safe workplace for your employee and others: It is imperative that you ascertain if your employee can perform her essential job duties in a safe manner. The best way to do this is to receive clear instructions from her treating physician. Be very direct, include a list of essential job duties and ask the physician if the employee can perform her job duties safely. Be sure to receive an unambiguous response from the treating physician.
  • Returning to work after birth: Neither the employee nor the employer should determine when and if it is appropriate for the employee to return after delivery. The physician is an expert in this matter. They need to definitively state when it is safe and appropriate for the employee to return to work, again with prior knowledge of the employee’s essential job duties.
  • Doctors’ notes are often problematic: Many women approach their health care team, asking for a note to request accommodation. Unfortunately, most health care providers are unaware that as many as 40% of pregnant women work in jobs that are not eligible for FMLA. Therefore, when a doctor writes that a woman “cannot lift” or “needs time off her feet”, the employers may determine that the woman cannot perform her essential job duties and they are required to place her on leave, often unpaid.
  • Cooperation is best for the employee and the employer. It is in the best interest of the employer to know early on that an employee is pregnant, but an employee needs to feel confident in continued employment as well. An employer, to be forthright and honest, should advise an employee to communicate with her health care team about her essential job duties and only request accommodation when necessary and with very specific directions.

We strongly encourage employers and employees to consult with an attorney who specializes in employment law or employee benefits law when dealing with workplace pregnancy issues.