April 09, 2020

Pregnancy, COVID-19 and Risk Mitigation

Despite some reports, some employers really do care about their employees.  Some try to keep their employees safe. Those efforts can also land them in hot water. Earlier this year, the U.S. EEOC recently reported one employer required all pregnant employees to obtain a doctor’s note, regardless of whether the employee was requesting any accommodation in her job duties, responsi­bil­ities or schedule. It was the employer’s position that the work they performed might be a safety risk for pregnant women and their unborn children. When a pregnant employee expressed concern over having to submit a doctor’s note, the employee was terminated on her next scheduled shift.

On April 9th, the EEOC addressed a similar question related to COVID-19.

Q: May an employer postpone the start date or withdraw a job offer because the individual is…pregnant, which place[s] them at higher risk from COVID-19?

A: No.  The fact that the CDC has identified those who are pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.  However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

Lessons Learned:

  1. Remember the U.S. Supreme Court’s holding that, “the decision whether a pregnant woman should work rests solely with her. She, and not the employer, is responsible for making decisions that affect her safety and that of her child.”
  2. This case settled for $27,000.  But wait, there’s more.  The settlement also included four hours of annual, live training for all management and human resources personnel; new policies that prohibit discrimination; bi-annual reporting on any employee who reports pregnancy discrimination; changes to its job advertisement and application materials; and the posting of a notice regarding this settlement.
  3. Be proactive. Train your supervisors, managers and – yes – your HR staff now. Ensure they are familiar with the PDA. Need a resource?  Check out FiveL Company’s April webcast, “Pregnancy: The New, Preferred Protected Class?” here. Just $25 pp, pre-approved by HRCI and SHRM for 1.25 credits.