Pregnancy-Related Impairments and the Workplace
It can be confusing to distinguish between a pregnancy related disability and conditions that are the normal results of pregnancy, and whether such condition is covered by the FEHA, ADA, FMLA and / or Title VII. Sharon Rennert, the EEOC’s senior attorney advisor in the Americans with Disabilities Act (ADA)/Genetic Information Nondiscrimination Act (GINA) Division of the Office of Legal Counsel, explained to attendees of the National Employment Law institute conference that “pregnancy itself is not a disability and never has been”. Pregnancy itself is not a disability, but the impairments that come with pregnancy can be and can possibly be a covered disability.
The duration of the pregnancy-related impairment will be a consideration in determining if it is a disability or not. For example, some women develop pre-eclampsia in their last month of pregnancy. It could be argued that this is not a disability because the impairment has not lasted long enough to have substantially limited a major life activity, and it is assumed that the symptoms will stop once the baby is delivered. However, if the pre-eclampsia has started earlier in the pregnancy and lasted several months, than it could be considered a disability.
It is also important to determine whether the pregnancy-related impairment is covered by FEHA, ADA, FMLA or Title VII. When trying to decide what is covered by what agency, it is important to consider a few distinctions. FMLA covers some pregnancy-related impairments that are serious health conditions. FMLA only provides for 12 weeks of leave a year and does not require the employer to reasonably accommodate the employee. For example, a pregnant employee is suffering for morning sickness. She would like to come in late to reasonably accommodate her pregnancy-related impairment. Under FMLA, she has no reasonable accommodation rights. She would be covered under the FEHA and ADA if the morning sickness lasted over several months and substantially limits a major life activity. FEHA and ADA prohibit discrimination against pregnant women, and do require reasonable accommodations for that employee.
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