I have Light Duty Positions Available for Employees who have an Illness, Injury or Disability. Do I have to Offer an Open Light Duty Position to Pregnant Employees as Well?

Under these circumstances, yes. There has been a lot of ambiguity and misunderstanding from the government and courts over the past 35+ years since the federal Pregnancy Discrimination Act (PDA) became law. The lack of guidance and clarity from the courts regarding what is and is not “pregnancy” and what sorts of policies employers can have, and should not have, has made it difficult to understand the extent to which employers need to accommodate pregnant workers. Recently the EEOC has sought to eviscerate much of this ambiguity by issuing comprehensive new guidance on July 14, 2014, regarding the agency’s interpretation of the PDA.

One area that the EEOC has taken a firm stance with is light duty availability. We now have much more guidance from the government and it is clear that at the federal level they consider it to be a discriminatory practice (i.e. an unlawful policy) for companies to offer light duty work to employees on terms that exclude pregnant women. There might be nuances to the situation that would not create a discriminatory practice. For example, the company might have a limited number of light duty jobs, which if full with pregnant or non-pregnant employees, a duty would not exist to create another one to accommodate a newly pregnant employee. As a general rule, however, employers are now on notice that light duty policies and accommodation practices, which do not offer equal access to or equally treat pregnant workers will be considered facially discriminatory by the federal government.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.