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What rights do I have as a pregnant employee?

During what should be one of the happiest times in a woman’s life, the workplace can be a very scary place to navigate. Most employees are unaware of what legal rights they do (and don’t) have. One of the most basic questions that may arise is what rights you have while employed and pregnant. Another may be what rights you have to maternity leave following the birth of your child. Under the Pregnancy Discrimination Act (which only applies to employers with 15 or more employees), a company cannot fire, refuse to hire, harass, demote, or take other adverse action against a pregnant employee if the woman’s pregnancy (or related medical condition) was a motivating factor in that decision. Although we are living in the 21st century, it is still far too common for women to be fired because of a pregnancy or their need to take leave for the birth of a child or to care for their newborn. If you or someone you know is being discriminated against because of a pregnancy or birth of a child, it is imperative that you contact a pregnancy discrimination attorney as soon as possible to fully understand and protect your legal rights.

What leave am I entitled to during my pregnancy?

Pregnant employees in Texas must be afforded the same as other non-pregnant employees with respect to leave and other benefits. Likewise, an employer cannot force an employee to take leave because of her pregnancy so long as she is capable of performing her job. If a pregnant employee is not able to perform her job duties as a result of physical limitations resulting from the pregnancy, she must be allowed to take leave on the same terms and conditions as other employees who are similar in their ability or inability to work. Additionally, if a pregnant employee does have to take leave due to a pregnancy-related condition, she must be allowed to return to work to the same extent that other employees on sick or disability leave are allowed to return.

Beyond normal leave and benefits that a pregnant employee should be afforded, a pregnant employee who has an impairment related to her pregnancy may qualify for a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, a company may be required provide certain equipment for the pregnant employee to allow her to sit while performing job duties that are typically performed while standing. An employer may modify certain workplace policies or work schedules. It is also possible that a pregnant employee may be able to take leave as a reasonable accommodation beyond what the employer would normally provide under its sick leave policy. These are all very fact specific issues, and the best thing that you can do is reach out to a pregnancy discrimination attorney in your area to discuss your legal rights.

What leave am I entitled to following the birth of my child?

The Family Medical Leave Act (FMLA) allows certain employees who have worked a year or longer for a company with 50 or more employees to take up to 12 weeks of leave for the birth and care of the employee’s newborn (or for the employee’s serious health condition if there are medical complications related to the birth). The FMLA does not require the employer to pay the employee anything for this leave, but a company’s own policy and/or certain short-term disability policies may provide for a certain amount of pay. If a pregnant employee intends to take some or all of the 12 weeks of FMLA protected leave, she must (a) notify the employer in advance of her intention to take the leave and (b) fill out and submit any required paperwork. At the expiration of the employee’s FMLA leave, she must be returned to the same or equivalent position.

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Employees with Disabilities During the Pandemic – COVID-19 and the ADA

Employees with disabilities have long known that they are protected under the Americans with Disabilities Act (ADA), including the requirement that employers provide reasonable accommodations.  However, during these previously unforeseen times, there have been a lot of questions about how the ADA applies to employees with disabilities during the pandemic, what rights to accommodations employees with disabilities have, and have employer obligations under the ADA changed at all.  While this post is meant to provide employees with general guidance on these issues, do not wait to contact an employment attorney in your area if you believe that your rights have been (or continue to be) violated by your employer.

Requests for Reasonable Accommodations during the Pandemic

The requirement that employers provide employees with reasonable accommodations under the ADA has not changed due to the pandemic.  Reasonable accommodations may include any adjustment or modification of job duties that enable an employee with a disability to perform the essential functions of his/her job, so long as the accommodation does not create undue hardship for the employer.

It is now well known that certain disabilities place individuals at a heightened risk of serious illness or death from COVID-19.  Because of this, employees who suffer from one of these disabilities may need to request a reasonable accommodation to protect themselves from exposure.  While this is not an exhaustive list, reasonable accommodations could include

  • telework
  • modified job assignments
  • temporary transfer to a different position,
  • modified work schedule
  • using physical barriers
  • a change in office space to reduce the chance of exposure

Ultimately, as was the case before the pandemic, if an employee believes that he/she needs an accommodation to perform the job, the employee needs to notify the employer and submit the request.  An employee and employer must engage in what is called the ‘interactive process’ to figure out what, if any, reasonable accommodations may be appropriate.

Employees’ Right to Privacy

Under the ADA, employers are required to keep employees’ medical information confidential (i.e. store separately from the employee’s personnel file).  However, this has been somewhat complicated by the pandemic.  For example, what does a supervisor do if he/she discovers that an employee has tested positive for COVID-19?  While the supervisor is obligated to keep this medical information confidential, the supervisor is not prevented from reporting the information to the appropriate designated individual (oftentimes HR) so that the company can take proper steps to protect other employees.  The ADA also does not prevent an employer from asking the positive employee about who they have come into contact with at work so that the employer can notify those individuals that they may have been in contact with someone who tested positive (without disclosing the identity of the positive employee).

Know Your Rights

Know your rights, stand up for yourself, and get the advice and representation that you need.  If you have a disability and need an accommodation (related to the pandemic or otherwise), it is always important that you advocate for yourself.  If your employer is not respecting your rights and following the law, speak to an employment attorney who can advocate for you.  If you have been fired because of your disability or request for reasonable accommodation, it is imperative that you contact an employment attorney who can pursue any available legal claim and remedies on your behalf.talk-to-employment-attorney

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