Mary Kate Liffrig: Hello and welcome to Hall Render’s HR Insights for Healthcare podcast, covering labor and employment law cases and trends for professionals working within the healthcare industry. I’m Mary Kate Liffrig.

Dana Stutzman: And I’m Dana Stutzman.

Liffrig: Dana and I are attorneys with Hall Render, the largest healthcare-focused law firm in the country. We both practice employment law and regularly advise healthcare clients on a variety of labor and employment law topics. Please remember the views expressed in this podcast are those of the participants only and do not constitute legal advice.

Stutzman: Mary Kate and I are here today with our colleague, Kevin Stella. Kevin is a shareholder in our Indianapolis office and he practices labor and employment law. Kevin, thank you for being here and I was wondering if you could just start with an overview, if you will, of your practice and what it looks like on a day-to-day basis.

Kevin Stella: Yeah, thank you both for having me. As you said, I practice labor and employment law here at Hall Render. I’ve been here 18 years and more, and I practice on a day-to-day basis labor employment law and work with healthcare human resource folks in hospitals, physician practices, other healthcare-related entities, and the the work I get to do ranges from hire-fire handbooks, policies, agreements, FMLA, ADA, leave of absence issues, which we’ll talk about today specific to pregnancy. And so it’s been a very enjoyable practice and very fortunate to have the clients I get to work with.

Stutzman: Wonderful. All right, thank you for that. Now, let’s get to it. Let’s get into the weeds a bit. Today we are going to talk about the federal Pregnancy Discrimination Act, sometimes referred to in shorthand as the PDA, and recent cases and EEOC enforcement actions related to accommodating pregnant workers. I know personally this is a topic that I have started fielding questions on more and more frequently over the last couple of years. Kevin, as a starting point, I was wondering if you could just give us a quick description of what the Pregnancy Discrimination Act is and what it requires of employers to do in a very general sense.

Stella: Sure. So the Pregnancy Discrimination Act, as some of our listeners may know, it was passed in 1978 and it was passed to make clear that Title VII of the Civil Rights Act prohibits discrimination based on pregnancy, based on childbirth, as well as related medical conditions, that that would all constitute sex discrimination under Title VII. And so when we talk about pregnancy, it would obviously be current pregnant employees are protected, as are employees who had a prior pregnancy or who may intend or want to become pregnant in the future. And then on the medical condition side, if an employee is pregnant and there are medical conditions related to that pregnancy, they can be protected for that as well.

Stella: And that could be things like gestational diabetes or preeclampsia or other medical conditions that may be related to pregnancy. And so employers, what the PDA says is employers cannot take adverse employment action or treat pregnant workers or those who are described less favorably than those who are not pregnant. At the end of the day, women who are affected by, again, pregnancy, childbirth or those related medical conditions, they have to be treated the same as other persons who are not affected by pregnancy or childbirth or medical conditions, but similar in their ability or inability to work. That’s the crux of what we’re talking about.

Liffrig: Kevin, thank you for that explanation. So it sounds like the PDA is fairly broad and it prohibits discrimination just like any other protected class under Title VII. So just like we can’t discriminate against an employee because of their sex or religion or race, we can’t discriminate based on pregnancy. But I think one of the most interesting things about the PDA is the obligation to accommodate. Can you tell us a little bit more about what’s required with regards to accommodation of pregnant workers?

Stella: Sure, so again you can’t treat them less favorably, and so if you have a class of employees, non-pregnant employees, who are afforded certain accommodations, pregnant employees, to the extent that they’re similar in their ability or inability to work as those non-pregnant employees, should be afforded the same accommodation. And where this is really a very good example of this, and where it has come to a head more recently is in a Supreme Court case from 2015. It’s the Young vs. UPS and it illustrates that point very well. I’ll provide you a few specifics on that. This was a case where UPS, as many employers do, they have a light duty program, and when we talk about light duty, what we mean by that is if an employee for some reason has certain restrictions or cannot do certain aspects of his or her job, a light duty program then would allow that person to perhaps move to a different job entirely for some period of time to accommodate those maybe physical restrictions that he or she has.

Stella: And so UPS had a light duty program. Sometimes healthcare employers call it transitional duty, so transitional duty, light duty, kind of the same thing. So UPS had a light duty program and it was only available to three categories of workers. The first category were drivers, UPS drivers, who had become disabled on the job. If they’d become disabled on the job, like a work-related injury, then they would be eligible for a light duty work opportunity at UPS. The second category were employees who had lost their Department of Transportation certification. They could have a light duty job. The third category were employees who suffered a disability under the ADA. And so what’s missing in that category is obviously pregnant workers. It’s not one of the categories of workers who could receive light duty. And so there was a female driver, a pregnant driver at UPS, who her physician issued lifting restrictions.

Stella: As a result, she could not perform all of her duties as a driver, but yet was not eligible for light duty work. And so she brought a lawsuit because of that and said, “Hey, this is not right. This is not fair that I am being treated differently than these other three categories of non-pregnant workers.” Now historically, when I first started practicing law in 2002, we would rationalize treating a pregnant worker different. We would say, “Okay well look, if we are only,” for example, UPS did this, “We are only going to afford light duty work to those who are injured on the job. Those who are not injured on the job, they don’t get light duty. Maybe they go out on FMLA leave, maybe they get some other type of leads, but they’re not going to get a light duty position. And as far as pregnant workers, we’re going to treat them the same as those non-pregnant employees who are injured off the job. Therefore, we’re not treating them unfavorably.”

Stella: But UPS has kind of turned that on its head, and ultimately the court came down and said, “We’re not outright prohibiting or banning light duty programs that aren’t afforded to pregnant workers. However, if those policies impose a significant burden,” that’s the key phrasing from the case, “If those light duty policies, for example, impose a significant burden on pregnant workers, then we’re going to significantly question whether that’s legal or not.” And in essence, they have made it, they being the Supreme Court, in this ruling have made it much easier for a pregnant worker to prevail on the argument that she should be afforded in this case light duty, that she should be afforded the same light duty opportunities as a non-pregnant worker who is unable to perform his or her job.

Liffrig: That’s really interesting. To your point, I mean pre-Young vs. UPS, the rule was that the PDA just required an employer to be essentially pregnancy blind, right? So ignore the employee’s pregnancy, treat that employee the same as it would if she were not pregnant. And so now it sounds like you’re saying the Supreme court ruling in Young vs. UPS has maybe made it a little bit harder to make that point to show that a policy is pregnancy blind because of this substantial burden.

Stella: That’s right. And I would actually say a lot harder, a lot harder. And we’ve seen an increase in activity and interest from the plaintiff’s bar, from the EEOC in challenging these types of programs and policies. For example, recently Walmart settled a pregnancy discrimination suit, a class action for $14 million. That’s a big number, and the basis of that case is very similar, if not the same as, what we’re talking about or what I’ve described with UPS. It is around an employer’s, or Walmart’s in that instance, practices and policies that were afforded to non-pregnant workers but not to pregnant workers. Healthcare specifically, the EEOC seems to have taken an interest. There have been … well, I’ve mentioned the UPS case of course. In 2015 the Supreme Court really remanded that case back to the lower courts in light of its ruling to say, “Okay, lower courts, you apply this ruling now. Now that we’ve given you the framework with which to rule on this case, go forth and rule on the case.”

Stella: Well, not surprisingly, that case has settled. UPS has settled that case for $2.25 million. And then the healthcare side, I mention healthcare specifically, we’ve seen a number of claims brought, litigation brought by the EEOC against healthcare entities around things like light duty programs, as well as leave programs, where sometimes employers will offer leave from work, maybe even beyond or outside of the FMLA, but pregnant workers may not be entitled to them. So there’s been a focus on this issue and even more so a focus, I believe, by the plaintiff’s bar and certainly the EEOC on healthcare specifically.

Stutzman: Kevin, the topics that you’ve brought in, that you raised here just a couple of seconds ago about light duty, concept of light duty, concept of leave, in my mind those often go hand in hand with the ADA, the Americans with Disabilities Act. So I’m wondering if you could talk briefly about how the ADA comes into play here in the PDA arena. I recall, maybe a decade ago or so, there was case law that suggested that pregnancy in and of itself without additional complications was not a disability under the ADA. The question now, given Walmart, given Young, given uptick in EEOC enforcement, is that still good law? Is it still pretty solid ground for an employer to take the position that pregnancy by itself does not equal a disability under the ADA?

Stella: Well, as you said, it’s a changing landscape for sure. It’s a changing landscape. A side commentary, I think the workplace obviously is evolving as it always has. There are more progressive policies, more progressive ways in which we’re trying to accommodate workers, and I think the courts are evolving that way too. That all said, generally I would still say that a normal pregnancy is not likely to be a disability under the ADA. But again, it’s a changing landscape and we have to be very aware and attuned to that. Secondly, many times it’s not a normal pregnancy. There can be the preeclampsia, the gestational diabetes. We know that when the ADA was amended back in 2009 that what constitutes a disability anymore is very … is intended to be interpreted broadly. So when you start talking about medical conditions related to pregnancy, it very easily could become an ADA-protected disability as well.

Stella: And so to your point, we’re having to be very mindful of not just the PDA but the ADA. So the other comment I have on that is this. I have, over the last several years, more and more I feel like we’re getting calls from clients where it’s a what otherwise seems to be a normal pregnancy of an employee, and in the healthcare setting it often is a bedside nurse or some other healthcare worker in which there’s some physical demands, physical requirements of the job, and what otherwise appears to be a normal pregnancy. But the physicians are issuing lifting restrictions, 20, 25 pound lifting restrictions. Maybe that’s in an effort to certainly protect the mother and the unborn child, or maybe it’s done in an effort to protect the physician from liability, him or herself.

Stella: But it adds a layer of complication to the analysis because you have maybe a normal pregnancy, maybe we don’t have any reason to believe or know why the restrictions were issued other than just a precaution. But now we have to analyze whether or not that individual, that pregnant worker must be accommodated. If you have a light duty program, is that person entitled to a light duty position, or is that person entitled to some leave if they can’t do the lifting? Is the lifting an essential function of the job? It’s an analysis that we have to look at individually, an analysis that I encourage our clients to reach out to their legal advisors to think through, because it is, as I said, it’s a changing landscape.

Liffrig: So along those lines, Kevin, in light of the Pregnancy Discrimination Act and in light of the Americans with Disabilities Act, what is your advice to employers to help ensure compliance as it relates to accommodating pregnant workers?

Stella: Well, the first thing, and hopefully just by listening to this podcast, I think that’s a big step, is to understand the changing landscape, to understand the law and these protections. Probably simply stated, the protections today are greater than what the protections were 10, 15, 20 years ago. These laws are just being interpreted to protect workers, which is not a bad thing. That’s not a bad thing. So that’s certainly step one, understand, have your radar up when these issues come across your desk. And how you used to handle them may not be how you need to handle them, so seek advice. Number two, specific to light duty programs, if a client has a light duty program, either formal or informal, it is important to review it. It is important to review it against the backdrop of that UPS-Young holding.

Stella: We know there’s now a significant burden that employers carry to demonstrate that a light duty program is not discriminatory against pregnant workers. Does your light duty program pass that test? They need to be taken off the shelf and reviewed and studied and as you both know, a lot of times a light duty program is not formal. A lot of times a light duty program is what that department director or that floor manager has decided. This month, maybe it was a something that they were able to offer light duty to an employee, but six months from now they don’t want to offer light duty. So where those practices are not as formal, it’s important for employers to really get a command of what’s happening out there in the departments, on the floors, on the units, and considering is that, again, against the backdrop of UPS and Young, are we in a defensible position? So education, review your policies, train your managers and supervisors, and again consult with legal counsel if you have questions.

Liffrig: And what about … I guess this might be an opportunity to also just remind our listeners that there are state laws that may also impact this analysis and so employers should also be reviewing their state laws, understanding what those are and how they may differ from federal law as they develop their policies.

Stella: That’s a great point. Along that line of changing landscapes, states, and even some instances, local government are passing additional family leave laws and rights for workers as it pertains to just leave and work life balance generally. So, be mindful of those developments.

Stutzman: Okay. Kevin, in closing, I wanted to thank you for joining Mary Kate and for joining me on the podcast. It’s been very helpful. And as a reminder to our listeners, for more healthcare employment law content, I’m encouraging you to please visit our website at hallrender.com, and please feel free to subscribe to our podcast. If you’d like to be added to our monthly newsletter, please feel free to send me an email directly at dstutzman@hallrender.com, or you can reach out to your regular Hall Render attorney.