Implications and questions following Young v. UPS's determination of the obligation of employers to accommodate work restrictions of pregnant employees

Russ Samson Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 05/01/2015 at 03:36 PM by Russell Samson

Discussed in an earlier blog post were the obligations of employers to accommodate work restrictions of pregnant employees created by the Supreme Court in its decision in Young v. UPS. This post will discuss some of the broader questions that may stem from the newly announced standards.

Impact on state workers' compensation laws/Temporary Partial Disability

Citing a provision of the Maryland Code regarding temporary partial benefits, Justice Alito, on pages 8-9 of his separate opinion concurring with the result in Young, stated that a business would have “neutral grounds for providing special accommodations for employees who were injured on the job. If these employees had not been permitted to work at all, it appears that they would have been eligible for workers’ compensation benefits.” Iowa employers are familiar with Iowa Code Section 85.33(3): If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee's disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. If the employee refuses to accept the suitable work with the same employer, the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal. . . . Iowa’s workers’ compensation law provides an economic incentive for employers to offer temporary work tasks to employees entitled to benefits under that law while the employee continues recover. That same economic benefit is not present for any employee who has a temporary restriction as the result of a condition not covered by the workers’ compensation statute – from a leg broken while water skiing to a pregnancy. At the final stage of a pregnancy accommodation claim, a jury is to decide if the disparity between pregnant workers who do not get the benefit of “accommodations” and the non-pregnant workers who do is “significant.” And if the answer is yes, the jury is to then decide whether the reason (i.e., the employer is following the specific legislative provision in the workers’ compensation statute for temporary disabilities) is “sufficiently strong” to justify the burden imposed on the pregnant employee. Will juries find an employer’s reason, that it wanted to follow its state workers' compensation law, be “sufficiently strong” enough to justify not accommodating pregnant employees who have the same work restrictions as a non-pregnant employee with a workers' comp injury? If not, the jury is apparently able to consider both the burden and the strength of the employer’s reasons to determine if there is any inference of intentional discrimination. It is not clear how this new articulation of the McDonnell Douglas test for pregnancy accommodation claims will be construed and applied in the future. The test does suggest, however, that an Iowa employer who takes advantage of Iowa’s workers' compensation law regarding temporary partial disability benefits by returning an injured employee to some duties while recovering, may be inviting a lawsuit if the same accommodation is not made available to pregnant employees with similar restrictions.

What About the ADA?

In Part I.D. of the majority opinion (page 10 of the slip opinion), the Court observed that the ADA’s definition of disability was amended after Young’s pregnancy, which “may limit the future significance of our interpretation of the [PDA].” It noted that, post-ADAAA, the definition of disability in 42 U. S. C. §§12102(1)–(2) now includes any ‘“physical or mental impairment[s] that substantially limi[t]’ an individual’s ability to lift, stand, or bend.”  “As interpreted by the EEOC, the new statutory definition [of disability] requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix).” The cited-by-the-Court EEOC Interpretive Guidance clarifies that the statutory definition in 42 CFR §1630.2(j)(1)(ix) which would exclude protection for transitory impairments --  “lasting or expected to last for six months or less” -- only applies to persons “regarded as” disabled. Thus, an actual impairment, or a record of an impairment, that is transitory may still qualify as a “disability,” as far as the EEOC is concerned. The EEOC Guidance gives an example: “[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability” (has an actual disability). I am bothered by the almost cavalier use of variations of the word “accommodate” by the Supreme Court majority. It strikes me that this case is not about an accommodation in the abstract, but about the fact that Young didn’t get the precise accommodation she wanted. Under the ADA, a leave of absence which is not open-ended may in fact be a “reasonable accommodation.” In my reading of the opinion, however, UPS “accommodated” Young’s temporary inability to perform the day-to-day lifting required of a part-time driver by giving her an unpaid leave of absence while the temporary restrictions were in place. Young was not – as she apparently desired -- kept on the active payroll and assigned “make-work tasks”” as apparently was required for certain other employees under the collective bargaining agreement. Appreciating the scrutiny that drafts of opinions from the Court must undergo, I must believe that in using “accommodation” in explaining the elements of a prima facie case, the Supreme Court majority is contemplating that “accommodation” means something different under the PDA than “reasonable accommodation” means under the ADA.

Prediction and Tips

Young may raise more questions than it answers, but it has set a framework for evaluating the issue of accommodating pregnant employees. I predict that, just as was true regarding the general parameters of a Title VII prima facie case after McDonnell Douglas, there will be litigation in the future to fine-tune the new standards. In the meantime, Iowa employers would be wise to reconsider their practices regarding their response to job restrictions of pregnant employees. In addition, review, and revise as necessary, written policies regarding pregnancy leaves, reasonable accommodations, light duty and on-the-job injuries. We now know that the second clause of the PDA – the “shall be treated the same for all employment-related purposes clause  imposes obligations on employers beyond the straightforward “nondiscrimination” provisions of Title VII. The parameters of those obligations will become clearer in the future.

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