This article is the first in our new ongoing series of HR scenarios by our National HR Client Service Manager, Kim Schaff, SHRM-SCP, PHR. In each of these articles, Kim will walk you through an HR scenario that may be encountered in the real world and break down how this situation should be handled and all the ins and outs of the rules and regulations that impact the scenario.
Say there’s an FMLA-covered employer with an employee who is pregnant. That employee experiences complications during her pregnancy. Due to those complications, her physician decides to place her on bed rest. While the employer is able to permit the employee to telework from home during the initial short period of bed rest ordered by the physician, they are concerned that additional bed rest may be ordered.
If more bed rest is ordered, the employer is worried that they will not be able to accommodate any additional teleworking. Also, there is a possibility that the employee will exhaust her FMLA leave by the time the baby is actually born. Is the employer required to give the employer additional leave after the baby is born?
Issue #1: What are the relevant laws and regulations?
This employer must consider implications of the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA) and potentially, the Americans with Disabilities Act (ADA), in addition to whatever state laws may apply in their jurisdiction.
Issue #2: What is this employee provided by the FMLA?
The FMLA requires covered employers to grant 12 weeks of unpaid, job-protected leave to qualifying employees for reasons including: (1) a serious health condition that makes the employee unable to perform the functions of the position of such employee” and (2) the birth of a son or daughter of the employee and in order to care for the son or daughter.
Issue #3: How is this employee protected by the PDA?
This Act applies only to the determination of the leave issue while the employee is on bed rest. The PDA requires an employer to treat the pregnant employee the same as if she were not pregnant.
In the case of either a request for unpaid leave while on bed rest or for paid teleworking opportunity while on bed rest or even for additional leave beyond that permitted under the FMLA, an employer must treat the pregnant employee the same as it would treat any other employee with a medical condition that prevented the employee from working for a set period of time. If the company has a policy providing for either additional leave or teleworking flexibility, then that leave or work opportunity must be offered to the pregnant employee under the same circumstances as it would be offered to any other employee with a health condition requiring leave.
Issue #4: How is this employee protected by the ADA?
Depending on the types of complications caused by the pregnancy and the extent of the bed rest restriction, the employee may also be disabled under the ADA. She will qualify as disabled if the unusual physical impairments caused by her pregnancy affect a major life activity and that major life activity is substantially limited by the impairment.
Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), there were court decisions ruling both ways on the issue of whether pregnancy complications constituted a disability. Some of these cases relied on the specific nature of the limitation caused by the pregnancy complications, but other cases relied on regulations that indicated short-term impairments were not “substantially limiting.” Because pregnancy is inherently short-term, some courts found that the pregnant employee was not disabled.
Following the passage of the ADAAA, however, the U.S. Department of Labor (DOL) revised its regulations to be in harmony with and implement the new law. As part of these revisions, the DOL eliminated the regulations that included duration of the impairment as part of the “substantially limits” consideration.
The regulations also now specifically state: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ix). In conformity with the ADAAA, the regulations also lower the standard required to meet the “substantially limits” definition. Thus it is much more likely that a pregnant employee who experiences unusual complications from her pregnancy, which limit her activities, will be “disabled” under the ADA.
In this situation, let’s say the employee’s physician has restricted her to bed rest with only short periods away from the bed to use the bathroom or to prepare a meal. This sedentary lifestyle for, potentially, three months is sufficient to establish that she is limited in at least one major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Therefore, this employee would be considered disabled under the ADA for the duration of her bed rest.
Issue #5: What accommodation(s) must the employer consider under the ADA?
Once it is determined that this employee is disabled, and she has asked for an accommodation, then it is the employer’s obligation to engage in the interactive process with the employee to determine whether there is a reasonable accommodation available. The EEOC has issued guidance finding that a reasonable accommodation includes permitting an employee to take unpaid leave.
The EEOC has also issued guidance finding that a reasonable accommodation may include permitting an employee to work at home because changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. The employee should be able to explain how the job could still be performed from the employee’s home by reviewing essential job functions.
Several factors should be considered including the employer’s ability to supervise the employee adequately, whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to materials located only in the workplace.
Flexibility should be considered with regard to using online meeting tools and email, etc. If the job permits it, it is not unusual for an employee to work at home to the extent that his/her disability necessitates it (e.g. for 3 months while an employee recovers from surgery).
Issue #6: How will we account for the employee’s leave?
When an employee may be entitled to leave under both the FMLA and the ADA, an employer should determine the employee’s leave rights under each law separately and then consider where the two laws may overlap.
The first step in this situation would be to ask the employee how much leave she intended to use after the birth of her child. The typical leave is six to eight weeks. Assume for the sake of this discussion that the employee tells you that she already knows the birth will be by Caesarean section, so she will take eight weeks of leave following the birth. Thus, the total amount of leave she will take is approximately twenty weeks. Twelve of those weeks are guaranteed under the FMLA. Part of the FMLA leave will cover the time after the birth and part of the FMLA leave will cover the time she is on bed rest.
The remaining eight weeks of leave, which would be applied to the time she is restricted to bed rest, would be governed by the ADA. As the employer, you must determine whether this eight weeks of leave is a reasonable accommodation. If providing her with eight weeks of leave to accommodate her disability is going to place an undue hardship on you, then it is not a reasonable accommodation.
There are a number of considerations that factor into whether an accommodation constitutes an undue hardship, so it is advisable to consult with an attorney before rejecting a requested accommodation on the basis of undue hardship.
If after the interactive process, our employer determines that it is possible for the employee to perform her job full-time from home, completing the essential functions, without undue hardship to the employer – then the employer must consider teleworking from home as a reasonable accommodation to ADA.
At minimum, the employer must consider unpaid leave beyond the 12-weeks of unpaid-job-protected leave granted by the FMLA as a reasonable accommodation to ADA.
The employer determines that permitting the employee to work from home full-time would either change the essential functions of the job or present an undue hardship to the employer, the employer should consult with an employment law attorney prior to denying the employee this requested reasonable accommodation.
The employer should permit job-protected unpaid leave in accordance with both FMLA and ADA.