EMPLOYMENT LAW BRIEFING

1. EMPLOYMENT LAW BRIEFING Parental Leave and Pregnancy Accommodations September 18, 2014 www.tydingslaw.com

2. PREGNANCY • ACCOMMODATIONS

3. What Brown Did For Pregnant Employees

4. What Brown Did For Pregnant Employees • Peggy Young v. United Parcel Service (UPS) • UPS Light Duty Policy: • Light duty work provided to employees "unable to perform their normal work assignments due to an on-the-job injury“ • 4th Circuit ruled that policy was not discriminatory because it treated pregnant workers and nonpregnant workers alike Next year, Supreme Court will decide whether PDA provides employers an affirmative obligation to accommodate pregnant workers

5. Employers’ Duty to Accommodate Maryland Reasonable Accommodations For Disabilities Due to Pregnancy Law Requires employers with at least 15 employees to provide accommodations for employees who have a disability caused or contributed to by pregnancy, unless doing so would cause an undue hardship for the employer

6. Disabilities Caused/Contributed by Pregnancy • Severe Morning Sickness • Gestational Diabetes • High Blood Pressure • Anemia • Deep Vein Thrombosis • Urinary Tract Infection • Depression • Back Pain • Blood Clots • Abnormal Bleeding • Bladder Infection • Hypothyroidism • Constipation • Hemorrhoids NOTE: Pregnancy alone is not considered a disability

7. Employers Must Explore "All Possible Means of Providing a Reasonable Accommodation" • Changing job duties and/or work hours* • Relocating the employee's work area • Providing mechanical or electrical aids • Providing leave • Transferring to a less strenuous or less hazardous position for duration of the pregnancy

8. Exception to Employers’ Duty • An employer is not required to provide an accommodation that would constitute an “undue hardship” • Undue hardship means significant difficulty or expense. Factors include: • Net cost of accommodation; • Resources available; or • Potential impact on business operations.

9. Notice Requirements AN EMPLOYER SHALL POST IN A CONSPICUOUS LOCATION, AND INCLUDE IN ANY EMPLOYEE HANDBOOK INFORMATION CONCERNING AN EMPLOYEE’S RIGHT TO REASONABLE ACCOMMODATIONS AND LEAVE FOR A DISABILITY CAUSED OR CONTRIBUTED TO BY PREGNANCY

10. EEOC WEIGHS IN

11. Pregnancy Discrimination in the Spotlight 1978: Pregnancy Discrimination Act amends Title VII 2008: ADAAA covers women disabled by pregnancy 2012: EEOC prioritizes pregnancy accommodations 2013: Maryland reasonable accommodation law passes 2014: U.S. Supreme Court takes on Young v. UPS 2014: EEOC issues Enforcement Guidance: Pregnancy Discrimination and Related Issues

12. EEOC Strategic Enforcement Plan • EEOC’s Strategic Enforcement Plan (FY 2013-2016) says accommodating pregnancy-related limitations under the ADAAA and PDA is an emerging area of concern. • Why? EEOC pregnancy discrimination cases have declined: • 12% Nationwide (From 4,029 – 3,541 between FY2010-2013) • 24.7 % in Maryland (From 113-85 between FY2010-2013) • Perhaps because 23.7% of these cases resulted in a merit resolution in FY2013 – above average (17%)??

13. Pregnancy Discrimination Act (PDA) • No discrimination: pregnancy, childbirth, or related medical conditions • Pregnant workers must have same access to benefits as temporarily disabled workers with similar limits who are not pregnant

14. How the PDA Has Been Applied To Now • To women who are currently affected by pregnancy, childbirth, or related medical conditions. • If no benefits offered to the non-pregnant TDW, nothing owed to the pregnant. • Light duty can be limited to those with on the job injuries/ADA. • No duty to reasonably accommodate.

15. What Does the EEOC Say? (1) PDA applies to women who are pregnant, intend to become pregnant, have ever been pregnant, may ever be pregnant, are trying to become pregnant, etc., by virtue of phrase “women affected by pregnancy, childbirth, or related medical conditions.” Acknowledges Need For Nexus, But a Step Back for Women?

16. What Does the EEOC Say? (2) Employers must reasonably accommodate pregnant women with limitations arising from normal pregnancy. Non-disabled pregnant woman entitled to the same kinds of accommodations given to those with similar limitations who are disabled under ADA. MD R/A – Accommo Only if Medically Necessary ADA - Only Required if Person is Qualified/Disabled

17. What Does the EEOC Say? (3) Employers must accommodate pregnant workers who are limited in their ability to work the same as all non-pregnant workers who are similarly limited in their ability to work, regardless of the source of the limitation. This Conflicts With Prevailing Federal Law – To Be Determined By SCOTUS In Young v. UPS

18. Does the EEOC Guidance Matter? • Practical: Guidance tells us how EEOC will view charges filed against employers, so should be kept in mind when developing best practices and evaluating charges. • Legal: Guidance goes beyond PDA, ADA, and MD RA law, but is not legally binding • Guidance expected to be rejected by SCOTUS

19. UNDERSTANDING THE • NEW MARYLAND • PARENTAL LEAVE LAW • Effective: October 1, 2014

20. What Does the New Law Require? • Employers with 15 to 49 employees • must provide employees with up to • six weeks of unpaid parental leave • for the birth, adoption, or foster • placement of a child • Maintain the employee’s existing • health care coverage • Restoration of position or equivalent position upon return from parental leave

21. Eligibility • To be eligible for unpaid parental leave, the employee must: • Have worked for the employer for at least one year and for 1,250 hours prior to the date of the leave • Be employed at a work location in Maryland at which at least 15 employees work within a 75-mile radius of site

22. Notice Requirement • The employee must provide the employer with 30-days prior notice of parental leave • Prior notice is not required if the employee takes leave because of a premature birth, unexpected adoption, or unexpected foster placement

23. Denial of Parental Leave • An employer may deny a parental leave request if: • The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; and • The employer notifies the employee of the denial before the employee begins taking the leave.

24. Use of Paid Leave • The employer may require the employee, or the employee may elect, to substitute paid leave for any part of or all of the period of parental leave

25. Employee’s Return from Parental Leave At the conclusion of the parental leave, the employee must be restored to the same position or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

26. Employee’s Return from Parental Leave • The employer may deny restoration of an employee’s position if: • The denial is necessary to prevent substantial and grievouseconomic injury to the operations of the employer; • The employer notifies the employee of its intent to deny restoration; and • If the parental leave has already begun, the employee elects not to return to employment after receiving notice.

27. Violation of the Parental Leave Law • The law prohibits an employer from discriminating against an employee because he or she: • has requested or taken parental leave, • makes a complaint, • files a lawsuit, or • participates in a proceeding related to the parental leave law

28. Preparing for the New Parental Leave Law Things to Do and Consider Review and revise existing leave policies Implement a central review process for approving and/or denying leave Develop a written policy for requesting leave Create leave request forms to document leave requests, and approvals and denials of leave Educate human resources and supervisory staff regarding obligations under the law

29. Questions? Kraig B. Long klong@tydingslaw.com | 410.752.9701 Melissa C. Jones mjones@tydingslaw.com| 410.752.9765 Taren N. Stanton tstanton@tydingslaw.com | 410.752.9759 September 18, 2014 www.tydingslaw.com