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By: Amanda McCallum Cash
After a 3-2 vote, on July 14, 2014, the EEOC issued its first Enforcement Guidance on pregnancy in over 30 years. While the new guidelines cover a number of pregnancy-related topics that all employers should consider, two hot topics in the recent Guidance are (1) light duty for pregnant employees and (2) health insurance coverage for contraception.
For employers, the EEOC’s newly issued Guidance on light duty for pregnant employees is particularly noteworthy because many employers currently have policies providing light duty for employees only if they are injured on the job or are disabled within the meaning of the Americans with Disabilities Act. According to the EEOC’s recent Guidance, however, employers may violate the Pregnancy Discrimination Act if they do not change these policies. The Guidance provides that employers should provide light duty to pregnant employees to the same extent it is granted to other employees who are “similar in their ability or inability to work.” The Guidance is seen by many as a requirement to provide “reasonable accommodations” to non-disabled, pregnant employees.
Notably, the Supreme Court will take up a similar issue in its next term in Young v. United Parcel Service and determine the extent to which an employer must accommodate a pregnant, but non-disabled employee. In light of the impending decision by the Supreme Court, many have questioned the timing of the EEOC’s Guidance, as the Supreme Court’s decision could quickly overwrite the EEOC’s Guidance on this topic.
In another sharply criticized move, the EEOC’s Guidance also warns employers that they may violate Title VII if they provide health insurance coverage that excludes coverage of prescription contraceptives. Because contraceptives are only available for women, the EEOC’s position is that a health insurance plan excluding contraceptives is discriminatory. As many are aware, however, in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently held that a private, closely held corporations could refuse to provide contraception coverage if it violated religious beliefs. Although the EEOC acknowledges this decision in a footnote, it sidesteps how the Burwell decision would affect the EEOC’s interpretation of this issue.
While these two topics in the Guidance have garnered significant attention thus far, the EEOC’s Guidance on pregnancy touches on numerous other issues that may impact employers’ workplace policies. Employers would be wise to review the entirety of the EEOC’s Guidance on pregnancy and consult with legal counsel about any changes that may need to be made to workplace policies and practices. Please check back for additional analysis and updates on the EEOC’s new Enforcement Guidance on pregnancy.