Pregnancy complication

Peggy UH in LA

We have a pregnant employee who has been told by her doctor to reduce hours to no more than 24 a week due to blood pressure problems. It will be 2 months to her probable delivery. She is not eligible under FMLA because she hasn't been here a year yet (May 21 will be 12 months). We will reduce her hours, but technically she is not eligible to stay on our insurance (30 hours a week required). She has stated to her supervisor that she would prefer to do the work that Holly does which is an Asst. and not the job she is doing. We can accommodate her request but can we legally reduce her salary to the Asst. position? It will put us in a hardship as we will probably have to hire another person. Is this condition covered under ADA? Can we legally ask her to change to the Asst. position? Can we legally reduce her salary to the Asst. position? Once she goes under FMLA in MAY, i know we can give her leave and retain her on insurance. We will be making an exception for the next 2 months if we continue to pay for her medical insurance. Should we have her go on COBRA for those 2 months? My concern is that we have 2 other part-time employees who are working 24 hours and if they hear about us paying for her insurance for 24 hours, then they may ask us to allow them to be added to our insurance, too. Several issues here. I know that under FMLA we would have to keep her job/salary the same but she's not eligible for FMLA yet. (We are required in this state to provide for up to 4 months leave for pregnancy complications and 6 weeks for after birth of child.) Help!

LindaS

She does not qualify for protection under ADA as pregnancy is a temporary condition. If this were my EE I would reduce her salary according to the position she will be doing, remove her from the insurance and offer her COBRA. Doing anything else will create not only a dangerous precedent but will create hard feelings among your other part-time employees.

Once she is eligibile for FMLA you can place her back on the insurance, etc.

System

>She does not qualify for protection under ADA as pregnancy is a temporary
>condition. If this were my EE I would reduce her salary according to the
>position she will be doing, remove her from the insurance and offer her COBRA.
> Doing anything else will create not only a dangerous precedent but will
>create hard feelings among your other part-time employees.
>
>Once she is eligibile for FMLA you can place her back on the insurance, etc.

Pregnancy on its own is not a disability covered by the ADA; however, pregnancy-related complications may constitute disabilities under the ADA.

The EEOC's guidelines (specifically section 902 of the EEOC's Compliance Manual on the Definition of the Term "Disability" - [url]http://www.eeoc.gov/policy/docs/902cm.html[/url]) state, in part:

"(3) Pregnancy -- Because pregnancy is not
the result of a physiological disorder, it is not an impairment.
29 C.F.R. pt. 1630 app. � 1630.2(h); see also Byerly v. Herr
Foods, Inc., 61 EPD Par. 42,226, 2 AD Cas. (BNA) 666 (E.D. Pa.
1993). Complications resulting from pregnancy, however, are
impairments.

Example 1 -- CP is in the third trimester of her
pregnancy. Her pregnancy has proceeded well, and she has
developed no complications. CP does not have an impairment.
Pregnancy, by itself, is not an impairment.

Example 2 -- Same as Example 1, above, except CP
has developed hypertension. CP has an impairment, hypertension.
(Remember that the mere presence of an impairment does not
automatically mean that CP has a disability. Whether the
hypertension rises to the level of a disability will turn on
whether the impairment substantially limits, or is regarded as
substantially limiting, a major life activity.)"


So there is a possibility that an employee with pregnancy-related blood pressure problems could be entitled to protection under the ADA. As the regs state, it depends on whether the complication substantially limits a major life activity.

Kimberly A. Klimczuk, Esq.

SKOLER, ABBOTT & PRESSER, P.C.
Editors of the Massachusetts Employment Law Letter
(413) 737-4753 Email: [email]kklimczuk@skoler-abbott.com[/email]

This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.

Susan in La

Under the Louisiana Pregnancy Act you can't discriminate against her for pregnancy related conditions, but you don't have to treat her better than you do other similarly situated employees. I am HR Director for a state agency in Louisiana, and we would put her on leave without pay (if she had no annual or sick leave available) for the 16 hours she needs to be out each week. If we show her in our payroll system as a fulltime employee just taking 16 hours of LWOP each week she still would be eligible for our state group health insurance.

I would think if she voluntarily demotes into a lower level job you could reduce her pay. She would need to understand that you would fill her original job and she would have to come back to the job she demoted to. It might be a little different in the private sector, but that's how we would handle it.

mbeam

The other area you'll want to review is your medical insurance plan to see what it states as requirements for coverage.

One option to consider is putting her on COBRA for the hours and continuing to pay the employer's portion of the coverage.

Do you have disability coverage?

If she transfers to a different job, does that mean she can work more than the 24 hours? if it doesn't, I would be inclined to leave her where she is unless a dr. is recommending the change for health reasons. Otherwise you could be setting yourself up for requests from others for similar treatment. Now's the time to define the standards so have some consistency and can refer back to them for the next person that requests similar accomodations.

Peggy UH in LA

Thank you, all, for the information. You helped, particularly the impairment through ADA - that was a gray area to me, but since her life is altering because of the high blood pressure, i think she would have a case to be covered under it. Her doctor, she said, actually preferred her not to work at all but she said she had to work part-time for financial reasons. We have reduced her hours, her duties, will put her on COBRA, and return her to insurance when she is eligible for FMLA. She has agreed to return to a higher level of duties at her return after the baby is born. Additionally, we will pay her a bonus to cover the insurance; we pride ourselves on being a family-oriented business. Thanks for your help.
Peggy