6/7/2014 UCSF/UC Hastings • Suzanne Seger, • Jamie Dolkas, Esq. MTS, CNM, Director of Women’s I Just Need a Note: Associate Clinical Leadership at Professor UCSF Center for WorkLife School of Medicine Law, UC Hastings Pregnancy Discrimination, No disclosures College of the Law Workplace Accommodation, & the No disclosures Obstetric Provider’s Role Question 1 Question 2 Karen is 32 wks pregnant and works as a baker. She The percentage of women who work while on their mentions at her prenatal visit that it is becoming more maternity leave is: difficult to lift the 50 lb sacks of flour she must use to make products. She is considering stopping work. You A. 5% 45% should: B. 16% 58% A. Tell her the safest plan is to stop work C. 34% 28% B. Ask if she has spoken to her employer D. 46% 39% 22% about the plan C. Chart the functions which are becoming difficult for her and why 5% D. Write a note reflecting your medical 4% 0% opinion that it is time to stop work 5% 16% 34% 46% . . . . . . . . . . . s s c r . a n e e h h u t f t e o r h e n e h s a h f t i t e l l r e k a t s r i T A h W C 1
6/7/2014 Question 3 Judith is a 31 yo nullipara at 26 weeks of pregnancy. She Objectives reports that she is upset about a recent email noting that she would not be promoted due to her pregnancy. She believes her supervisor sent it to her in error. • Scope of the problem & significance You should: • History of pregnancy discrimination laws & 48% A. Tell her that she should sue her employer protections B. Document the conversation in her chart to 33% • Pregnancy disability leave & eligibility be helpful for later in case she needs it limits 19% C. Ask her what she wants to do with this • Effective and clear documentation in the information medical record for pregnancy D. All of the above 0% accommodations . . . . . . . . . . c . s . t o a e t b h a h a t t h w e r t h e n h r t e e l m o f l h e T u k l c s A l o A D Pregnant Women & Work • 70% of women who are pregnant and/or parenting are in the workplace (EEOC) 40% of mothers are the primary breadwinners for families in the United States today (Glynn, S.J. Center for American Progress 2012) 2
6/7/2014 Pregnancy & Discrimination • Is not a thing of the past • Continues to pervade private and public work environments. Pregnancy Discrimination Pregnancy & Work Cases • Are on the rise • Very few studies in obstetrics and midwifery on the topic 7000 6000 • Early studies addressed concerns 5000 around workplace exposures and 4000 1997 teratogens for the fetus 2010 3000 2000 1000 0 EEOC Pregnancy Discrimination Charges 2011 3
6/7/2014 Prevalence? Low Wage Workers • In a structured interview study of 165 • Are disproportionately affected. working women, 69% reported at least • Disparities in employment discrimination one form of workplace adversity during with the poorest bearing the largest pregnancy burden. • Higher prevalence in public vs. privately (Terman, 2012, Farrell, Dolkas & Munro, ERA) insured women (Cooklin, Rowe & Fisher, 2007) Pregnancy & Disability Hiring Practices Study Leave Pearls • In a study of interview and hiring • Leave legislation varies state to state practices of candidates with identical • Leave is FINITE no matter the worker’s resumes, 79% of employers were less circumstance likely to hire a mother. • Partial wage replacement is usual • Documentation in the medical record is essential *SOURCE: Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J. SOC. 1297, 1316 (2007). 4
6/7/2014 Pregnancy Leave • California: • Many workers will not qualify due to the nature of their workplaces Supplemental Disability Insurance (SDI) four weeks before due date & six weeks • Not all employers are held to federal after for healthy vaginal birth and state standards California Paid Family Leave Act six weeks at 55% pay to care for someone Family Medical Leave Act 12 weeks unpaid leave with job protection Three Categories of Pregnancy Accommodation Pregnancy-Related Legal Defined Protections At Work The right of pregnant workers to 1) Discrimination protections receive reasonable workplace accommodations for pregnancy- 2) Leave entitlements related impairments/disabilities. 3) Pregnancy accommodations 5
6/7/2014 Why Pregnancy Accommodations Typical Accommodation Are Important Requests 1) Enable pregnant workers to continue working • Periodic rest breaks safely and supporting themselves/families • No standing more than 8 hours 2) Continued employment and associated benefits • Temporary schedule change – includes fewer (health insurance, etc.) hours or modified hours 3) Termination and forced unpaid leave causes • Restructuring of job duties stress and other problems • Temporary light duty or transfer to another position 4) Big impact on low wage workers who tend to • Leave time to address pregnancy-related have less flexibility, benefits, and protections illness Legal Framework (Federal) Business Case for Accommodations 1) Title VII of the Civil Rights Act of 1964 (“Title VII”) Providing an accommodation allows 2) Family and Medical Leave Act (FMLA) – an employee to stay on the job which 1993 saves the employer on turnover costs. 3) Pregnancy Discrimination Act (PDA) – Accommodation also promotes worker 1978 morale, maintains consistency, and 4) Americans with Disabilities Act (ADA) – cultivates worker loyalty. 1990, amended in 2008 6
6/7/2014 Family and Medical Leave Act FMLA Limitations 12 weeks unpaid, job-protected leave, for employee’s own or immediate family member’s serious illness, or baby-bonding. 1) FMLA has strict coverage requirements – To qualify, workers must meet the following requirements: – In order to qualify, a worker must: Covered employer : Must work for employer with 50 or more employees in a 75-mile radius; • Be taking leave for a qualifying reason (for employee’s own or immediate family − member’s serious illness, or baby-bonding), Eligible worker : Must have worked for employer at least 12 months and 1,250 hours in year − • Have worked for employer at least 12 months and 1,250 hours in year prior to prior to taking leave. AND taking leave; Taking leave for a qualified reason: • Work for an employer with at least 50 employees within a 75-mile radius − � To care for a spouse, child, or parent with a serious health condition; – These requirements automatically exclude about half of all workers. � For their own serious health condition, or � To bond with a newborn child, newly adopted child, or recently placed foster child. 2) Leave under FMLA is unpaid ; federal law does not require Protections: paid leave of any kind. Job protection: Employees who take FMLA leave must be restored to same or equivalent job. − – Even when workers are eligible for unpaid leave under the Family Benefits: Entitled to continuation of group health benefits (up to 12 weeks); plus retention of − and Medical Leave Act, they often cannot afford to take it. accrued benefits and seniority. Retaliation: Protection from discrimination and/or retaliation. − Accommodations Under the Americans with Disabilities Act Pregnancy Discrimination Act � Under the ADA, an otherwise qualified An employer must treat pregnant women with employee with a disability is entitled to impairments the same as it treats non-pregnant workers with similar impairments. reasonable accommodations in the workplace Thus, an employer must make an accommodation for pregnant employees if the employer has or would have � Although ordinary pregnancy is not an done so for any of its non-pregnant employees. impairment, an impairment that arises due to pregnancy may constitute a disability 7
6/7/2014 ADA Interactive Process Americans with Disabilities Act As a result of recent 2008 amendments to the ADA, Employer and employee have a duty to participate many pregnancy-related impairments are in “good faith” interactive process to determine considered disabilities under the ADA: appropriate reasonable accommodation. *Tip: Pregnancy accommodation needs are often met • Women impaired by pregnancy-related when employer and employee have a conversation about conditions are protected from discrimination what the employee actually does (as opposed to her job on the basis of those impairments; and description, which is likely different on paper than in practice) and brainstorm together about how to address • Employers have a duty to make reasonable her temporary limitations. accommodations to enable pregnant workers to continue working during pregnancy. Interactive Process Considerations Notes for Work-Related Duty 1) What accommodation is requested? Can do more harm than good if not 2) What duties can the employee still perform written with attention to key components within those restrictions? 3) What are the employee’s job duties/tasks that require an accommodation, and how often are these tasks usually performed? 4) What changes would enable employee to per- form task or accommodate restrictions, such as help from coworkers, or shifting certain duties? 8
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