By Jack Tuckner, Esq.
You know, with all the bad news right now in our economy, given the still raging pandemic, the fragmented gig economy with many people finding it difficult to come by secure jobs with paid benefits, including health insurance, etc., it’s a difficult time in our country’s history, both in terms of the economy and health issues and the divisive politics.
But one thing that is unquestionably never been better in the history of the United States are the protections for pregnant working employees, or employees who are considering getting pregnant and worrying about the security of their jobs. Right now, and for the last five years, under federal law (if you work for an employer with at least 15 employees), you are covered by the Pregnancy Discrimination Act, the Civil Rights Act, which protects you from discrimination based on your sex, which all of course pregnancy-related issues are inseparable from your gender and who you are as a woman.
And you are now entitled to, since the Supreme court decided a case in 2015, which held that if you need flexibility during the course of your pregnancy, from your employer, your employer must engage in at least this conversation with you about your needs related to your pregnancy, your ability to do your job, to the essential functions of your job, whether any limitations, temporary flexibility or so-called reasonable accommodations should be implemented for you as a pregnant woman, whether you’re dealing with pregnancy-related medical conditions or challenges, and the Americans with Disabilities Act Amendments Act of 2008, also vastly broadens the categories of physical, emotional, orthopedic challenges, known limitations of pregnancy that women deal with that employers must treat no differently than it does other disabling conditions that non-pregnant women or men deal with when they are ill, or have a broken ankle, for example, when they provide flexibility as they must for other disabilities under the law.
And there are States and Cities such as New York City, if you work in New York City, where forget about it, you’re entitled to flexibility just because you’re pregnant. You don’t need to have your OB indicate that you need certain pre or postpartum, flexible accommodations from the employer due to some issues like gestational diabetes or hypertension or sciatica. There’s a number of now broadened issues that even if you were dealing with a healthy, fully robustly healthy pregnancy, but you’re concerned about COVID, for example. Pregnancy is a “comorbidity,” meaning that your pregnant condition, your gestational status, makes you more vulnerable to the ravages of the coronavirus. So that alone should provide you with additional leverage with your employer so that they can’t not only harass you, or discriminate against you because you’re pregnant because that’s illegal discrimination based on sex, pregnancy and often the disability or the perceived disabilities accompanying your pregnancy and or maternity leave, which is after all a disability leave.
But now, again, there are many States, New York, New Jersey, and Connecticut that go farther than the federal law in terms of protections for pregnant women in certain municipalities like New York City that are the most protective and require employers to exhibit and manifest flexible actions towards employees, in addition to not discriminating or being hostile toward pregnant employees, but they must give special treatment in fact, to pregnant employees, as opposed to non-pregnant employees and give that employee accommodations, to help that employee remain healthy, have a healthy baby, while still staying gainfully employed with that employer. So, if you’re dealing with a, if you’re pregnant or considering getting pregnant and worried about your job, just consider this, first of all, notify your employer when you are pregnant, in writing. Okay. So you’ll have a paper trail documentation of the day that your employer first got wind of the notion that you were in fact pregnant.
And if you have any needs that you would like to ask your employer for changes in your schedule or in your, ability to work, perhaps from home remotely, or in your commutation issues and how you get to work. If you’re concerned about mass transit, put those requests in writing. If you’ve got medical support from your OB/GYN, it is good to have that and put that in writing to your employer. And then if you’re experiencing harassment or discrimination or any differential treatment after your employer or your manager found out that you were pregnant and you’re going to need a certain period of time, ass you will, to recover from pregnancy, you have to be permitted to have reasonable period of time to recover postpartum. And then your employer must allow you to express milk, right, for your baby in the workplace, in a private setting, right? Not a bathroom.
These are all parts of, even after you have your baby, pregnancy-related medical conditions, such as lactation, that require flexibility and non-discrimination from your employer. So, if you’re dealing with or worrying about any pregnancy-related issue with respect to your employment from COVID on down to the normal challenges of your perhaps having morning sickness and needing a certain amount of flexibility, just standard first trimester morning sickness, you’re entitled to that flexibility and that conversation with your employer. And if you have any questions about your own situation or a loved ones, feel free to contact me. I’m Jack Tuckner. I’m an employee [rights lawyer] with Tuckner, Sipser, Weinstock & Sipser, a New York City employee rights firm that concentrates in women’s issues, gender specific issues in the workplace. And we will be happy to consult with you free of charge to discuss how we may be able to assist you further with your particular workplace challenges. So don’t quit! That’s always a bad thing. Don’t quit your employment before standing up for your rights and make sure you find out what your rights are before you do anything or take any specific action against your employer, or again, changing the status of your employment. If this has been helpful, please like this video below and subscribe to this YouTube channel so that you’ll get news, employee rights news directly to your inbox, hot off the press. Jack Tuckner–thank you very much–be safe and be well.