Significant Developments Under the Pregnancy Discrimination Act and FMLA
Employers should take note of recent developments in the areas of light-duty accommodations for pregnant employees and benefits under the Family and Medical Leave Act (“FMLA”).
Pregnancy Discrimination Act Changes
On March 25, 2015, the U.S. Supreme Court issued its decision in an important case addressing the Pregnancy Discrimination Act (“PDA”), Young v. United Parcel Service. In Young, an employee’s doctor restricted the amount of weight she could lift due to her pregnancy, which impaired her ability to meet the essential lifting functions of her position. The employee was denied a light-duty assignment, however, because those positions, under the employer’s policy, were available only to employees injured on the job, suffering from a permanent impairment under the Americans with Disabilities Act (“ADA”), or who had lost Department of Transportation (“DOT”) certification. The employee sued after being placed on administrative leave.
Shortly after the Supreme Court agreed to hear the Young case, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance on the PDA (www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm). With respect to light-duty policies, the EEOC categorically rejected policies that made distinctions based upon the source of the injury only (e.g., offering light-duty positions only to employees injured on the job).
In deciding Young, the Court rejected the EEOC’s blanket ban on certain policies in favor of a fact-intensive analysis. In particular, the Court’s analysis centered on the employee’s ability to prove that the employer’s legitimate, nondiscriminatory reason for any limitation on who will be provided light duty work is insufficient to justify the significant burden on a pregnant employee being excluded from light duty. According to the Court, it may be a question for a jury as to whether an employer’s light duty policy that affords (on its face or in application) accommodations to many employees but not pregnant employees is a pretext for discrimination. In the case at hand, the Court was troubled by the employer’s particular policy and how it was applied, asking rhetorically, “[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?” Ultimately, the Court reinstated the employee’s lawsuit and remanded for further consideration by the lower courts.
Based on this decision, employers should review current light-duty policies and practices. In light of the Young opinion, employers’ options include:
- Do not provide light-duty positions unless required by law (i.e., disability accommodation under the ADA that is not an undue hardship);
- Provide light-duty positions only for work-related injuries, ADA accommodation, and pregnant employees with weight-lifting restrictions that impact the essential functions of their positions;
- Provide light-duty positions for any employee who has a physical restriction but limit the number of positions and the time in the position; or
- Provide light-duty positions for any employee who has a physical restriction without limitation on the number of positions or the time in the position.
Of course, each option is not without risk, and employers may still be able to implement other policies that are not listed above so long as they comply with the principles announced in Young. In that regard, employers should carefully evaluate policy options with legal counsel to determine a policy that fits their business and is also legally compliant.
Additionally, the U.S. Department of Labor (“DOL”) has issued a new rule redefining “spouse” under the FMLA and has also updated its FMLA forms to reflect those changes (www.dol.gov/whd/fmla).
On February 25, 2015, the DOL issued a final rule modifying the definition of “spouse” under the FMLA. Under the current definition, “spouse’ means “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 C.F.R. §§825.102 and 825.122(b).
The final rule changes the definition to no longer depend upon an employee’s state of residence. Rather, the determination of whether someone is a “spouse” for purposes of the FMLA will be based on the law of the state or country where the employee’s marriage occurred – the “place of celebration.”
Based on the modified definition, an eligible employee in a legal same-sex marriage will now be entitled to FMLA leave for the purpose of (i) caring for a same-sex spouse with a serious health condition; (ii) birth, adoption or placement in foster care of a child; (iii) care for a child with a serious health condition of a same-sex spouse; (iv) care for a stepparent (i.e., same-sex spouse of an employee’s parent); (v) qualifying exigency leave due to covered military service; and (vi) military caregiver leave. The change does not extend leave protections to those eligible employees in civil unions or domestic partnerships. Currently, thirty-one states (including Indiana) and the District of Columbia allow same-sex marriages.
In light of the fact that not all states currently recognize same-sex marriage (or common-law marriage for that matter), the rule change may require employers in states that do not recognize such marriages to take extra steps to determine where an employee’s marriage occurred. Employers should evaluate and update existing FMLA policies, forms and notices to ensure that appropriate leave benefits are extended to same-sex spouses where required. Employers may request documentation to establish the existence of an FMLA-defined marriage, including a marriage license or simple written statement from the employee requesting leave, but the final rule states that the employee decides what type of document to provide. Furthermore, employers are allowed to extend leave entitlement to domestic partners or those in a civil union. Additionally, those employees responsible for administering FMLA programs must be trained to understand that determining a spouse’s FMLA eligibility may be more complex under the modified definition.
Significantly, the new FMLA rule was scheduled to take effect on March 27, 2015, but on March 26, 2015, a federal district court judge in Texas issued an injunction preventing the Department of Labor from implementing the rule. The district court’s decision was premised on the conclusion that the rule contravenes state laws that recognize only heterosexual marriages. It is unclear whether the Department of Labor will still seek to enforce the new rule in jurisdictions outside of Texas or any other state that was a party to the lawsuit, or whether the Department will comply with the injunction and continue to operate under the prior rule until there is a final judicial determination on this issue.
The U.S. Supreme Court is expected to add clarity to this issue by the end of June when a ruling on whether heterosexual marriage statutes are constitutional is anticipated. We will continue to provide updates on these developments as they occur.