COVID-19 Legal FAQ Update – Pregnancy Accommodations

Memorandum

From:  CEA Legal Center

Date: December 18, 2020

RE: COVID-19 Legal FAQ Update – Pregnancy Accommodations


Disclaimer: This publication is for informational purposes only and is not intended as a substitute for specific legal or other professional advice. If you have specific questions about your legal or contractual rights, contact your Colorado Education Association union representative or local leader. This guidance will be updated periodically based on new information and guidance, so please refer back to this link for the most current information.

QUESTION: Are pregnant staff members entitled to employment accommodations, such as working remotely, during the COVID-19 pandemic?

ANSWER: Pregnant employees may be entitled to such accommodations under the federal Pregnancy Discrimination Act (PDA), the federal Americans with Disabilities Act (ADA), and/or Colorado Second Amended Public Health Order (PHO) 20-36.

The PDA prohibits discrimination in employment on the basis of pregnancy. It does not expressly require employers to make accommodations for pregnant employees — unlike the Americans with Disabilities Act (ADA), which expressly requires employers to make reasonable accommodations for employees with disabilities.

However, the PDA contains language stating that “women affected by pregnancy . . . shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” So, if a school district is providing accommodations for employees who are not pregnant, but have increased vulnerability to COVID for other reasons, a pregnant employee could argue that the PDA requires the district to provide the same/similar accommodations to her. To CEA’s knowledge and experience, this is a brand new argument under the PDA that has just been raised in connection with the COVID pandemic and has not yet been tested in the courts.

A pregnant employee might also be entitled to reasonable accommodations under the ADA. Although pregnancy itself is not a disability under the ADA, some pregnancy-related medical conditions, such as gestational diabetes or severe respiratory issues, may constitute disabilities entitling employees to accommodation. So, if a pregnant employee is experiencing any pregnancy-related complications or medical problems that are not part of a normal pregnancy, she may be able to claim that she has a disability entitling her to reasonable accommodation under the ADA. The employee would need to provide the school district with written support for her disability and need for accommodation from her OB/GYN or treating physician.

Finally, the PHO 20-36 as amended, includes “(i)ndividuals who are pregnant” in its list of individuals “at risk of severe illness from COVID-19.” The PHO requires employers, including public school districts, to “provide work accommodations for individuals at risk of severe illness due to COVID-19 who remain subject to stay at home advisement, prioritizing telecommuting . . . .” Consequently, school districts may be required by this PHO to provide accommodations, including telecommuting, to pregnant employees who provides documentation that they have been advised by their physicians to quarantine at home.