Let’s imagine a situation. Veronica, who’s been on the job for only four months, informs her employer that she’s pregnant. She requests light duty and asks if temporary leave is an option.
Instead of accommodating Veronica, the employer terminates her employment, explaining to her that her employment is at-will and that they don’t have the staff to modify her duties or cover her responsibilities while she’s away on leave. They remind her that during her job interview, they asked if she had plans to become pregnant and she had said no.
Then her manager makes a point of highlighting instances in which her job performance was less than satisfactory – an assessment they had not, up till then, given to her.
Was the employer right to terminate Veronica’s employment?
Her employment was at-will, but we should remember that at-will employment has limits. There are illegal reasons for firing someone, and pregnancy is one of them. Pregnancy discrimination includes pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. And the Pregnancy Discrimination Act (PDA) prohibits discrimination and harassment based on pregnancy when it comes to any aspect of employment – hiring, termination, layoff, pay, benefits, and any other term or condition of employment.
Therefore, the decision to terminate Veronica's employment was a highly risky move. Veronica could claim that she was illegally discriminated against. Her employer would have a difficult time arguing that the termination was for cause – i.e., her poor performance – when they hadn’t documented the instances of unsatisfactory performance or given her any opportunity to improve.
Refusing leave or light duty was also potentially risky. If Veronica was temporarily unable to perform her job due to a medical condition related to her pregnancy, then her employer, under the PDA, must treat her the same way it treats any other temporarily disabled employee. If Veronica's employer had previously made accommodations for other temporarily disabled employees, then refusing accommodations to Veronica would be discriminatory.
Other laws may also come into play. Some impairments related to pregnancy may be disabilities under the Americans with Disabilities Act. The Family and Medical Leave Act provides protected leave for some employees incapacitated due to pregnancy, prenatal medical conditions, or childbirth. State laws may apply here as well. California and Maryland, for example, have pregnancy disability leave laws.
What if Veronica hadn't told her employer? Could the employer ask her if she was pregnant?
We recommend you not ask an employee if she’s pregnant. Generally, employers may not inquire about an employee's private health information unless an employee has requested an accommodation or leave. It’s understandable that you will need to plan for her absence; however, pressuring her to notify you before she is ready could expose the company to potential liability.
Also, employees are under no obligation to inform their employer of a pregnancy. The only exception is if an employee is planning to take leave under the Family and Medical Leave Act (FMLA), which requires 30 days' advance notice for leaves that are foreseeable.
We are often asked this question because employers believe they need to take special precautions with pregnant employees, so here is a bit of additional information on that subject:
- You may not require medical certification that an employee may continue working while pregnant.
- You should not put the employee on restricted duty or make any other modifications to her work unless she has informed you that she has restrictions due to a health condition.
- You may not force a pregnant employee into a leave of absence or work restriction while she is still capable of performing the essential duties of her job.
- The employee alone is responsible for making decisions that affect her safety and that of her future offspring.
- You are prohibited from retaliating against an employee who has spoken up or registered any kind of complaint about interference with her sole decision-making.
- Once the employee notifies you of the pregnancy, you should ensure that she knows she has options available to her if at some point she needs an accommodation to do her work.