Texas Employees and Pregnancy

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As it turns out, some employees will expand their families during their employment with your company. So employers ‘otta know how to handle a pregnant employee. As always, the issues are easy to muddle but this is an area that reasonableness, similar treatment between employees, and some practical sense can lead to some very appropriate decisions.

The EEO recently came out with clearer, and some say stricter, rules regarding employees who are pregnant and employed. As always, the matrix of applying rules is complicated by different laws applying to differently sized companies and different types of work. Further, people’s experience with pregnancy is very different and some employees may have much more of a pregnancy-related temporary disability than others. State laws and company culture also guide the way pregnant employees are regarded. Some states, like Texas, even reward employers who are doing a particularly good job enabling nursing mothers while others, like Colorado, have very specific requirements about how to treat a pregnant employee.

The new guidance from the EEO makes it clear that light-duty is required by an employer who offers light duty to other employees with temporary disabilities. It should be noted that employees cannot be forced to take different work assignments because the employer believes, or perceives, that the employee needs such accommodation.  Relatedly, it is illegal for an employer to make decisions based on the employer’s perception of the employee’s disability. Said differently, a boss may not assume his pregnant subordinate will need some particular accommodation. Further, an employee cannot be forced to take leave from work because of a pregnancy.

The EEO goes on to clarify what they believe is a condition of pregnancy, like preeclampsia. Lactation is also considered a condition of pregnancy and outlines that employers must allow employees to lactate in a private area that is not a restroom on a reasonable schedule. Just to be clear, this can mean that some women may need a place to lactate every hour while others may only need one session per day. Employers need to consult the Fair Labor Standards Act (FLSA) to determine if they must pay employees for their time while lactating. Aside from exempt and non-exempt payment issues covered by the FLSA, employers should consider that many women with deskwork are able to work, and receive pay, while they are lactating.

Many Texas employers have followed this guidance for years but, at the very least, the new EEO guidance should serve as a trigger to reanalyze workplace policies regarding pregnant employees. The EEO and medical authorities all have an increased focus on healthy pregnancy and lactation habits that are likely to continue. It will behoove all employers to create a culture that adheres to the laws, guidance, and best practices regarding its new mothers.


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