LAST week we discussed the legal prohibition on pregnancy discrimination. We also discussed various situations where pregnancy discrimination might exist. Since pregnancy discrimination laws are complex, below are some additional issues that a pregnant employee might want to be aware of:
Does a potential or current employee have to tell the employer about the pregnancy?
Since an employer cannot refuse to hire an applicant because of a pregnancy-related condition as long as she is able to perform the major functions of the job, therefore, an employer cannot ask the applicant whether the applicant is pregnant or plans to have children. The applicant may, therefore, choose to keep her pregnancy to herself if she is not yet showing.
If a current employee does not require or anticipate any kind of leave for medical visits or pregnancy-related sickness, and is otherwise able to perform the major functions of her job, she may choose not to share her pregnancy with her employer. However, if medical leave or visits are expected, the employee may wish to consult with her employer about notification in such matters, which may require the employee to disclose the pregnancy.
Can the employer prevent the employee from working while pregnant or require her to take a leave?
It is illegal for an employer to force a pregnant employee to go on maternity or disability leave while she is still able to work. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If they have been absent from work as a result of a pregnancy-related condition and they recover, the employer may not require them to remain on leave until the baby’s birth. Also, an employer may not have a rule preventing them from returning to work for a predetermined length of time after childbirth.
Can the employer prevent a pregnant employee from working in certain areas or doing certain tasks because of health and safety concerns?
No. If the employee is able to perform the basic functions of her job, and does not request any change in job duties, she must be permitted to keep doing her job at all times during pregnancy. If she voluntarily requests a modification of her job duties, then the employer must treat the request in the same way as other similar requests made by temporarily-disabled employees. An employer may use any procedure to screen an employees’ ability to work. For example, an employer may require a pregnant employee to submit a doctor’s statement concerning her lifting requirements before being excused from heavy lifting in the same way the employer may require any disabled employee who makes such a request.
What happens to the employee’s job while on pregnancy leave?
Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any leave, seniority, or reinstatement rights other workers get from the employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled.
What are the remedies available to an employee who was discriminated against because she was pregnant?
Pregnant employees who have been discriminated against may recover the following remedies: back pay, hiring, promotion, reinstatement, front pay, compensatory damages, including emotional pain and suffering, punitive damages, and other applicable remedies. Aggrieved employees may also recover attorneys’ fees, expert witness fees, and court costs.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
( Published December 19, 2009 in Asian Journal Los Angeles p. C3 )
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