• Pregnant Restaurant Staff: Are They Entitled to Special Treatment?
  • August 31, 2010 | Author: Michael Rabinowitch
  • Law Firm: Wooden & McLaughlin LLP - Indianapolis Office
  • Pregnant Restaurant Staff: Are They Entitled to Special Treatment?

    It is no wonder that restaurant employers regularly must address issues concerning pregnant employees. Servers, hosts, and bartenders often are female and in the 20 to 30 year-old age range--prime child-bearing years. When a pregnant server requests additional breaks, asks to be able to snack during a shift when it is otherwise prohibited, or she begins to shirk normal responsibilities such as carrying trays or cleaning up after a shift, what are the employers legal obligations to accommodate requests for special treatment?

    The short answer is--it depends on the circumstances. It is more complicated than it seems because the analysis involves the convergence of three federal statutes Title VII of the Civil Rights Act of 1964, as amended in 1978 by the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act of 1990 (ADA), and the Family Medical Leave Act (FMLA).

    Under the PDA, women affected by pregnancy, childbirth, or related conditions must be treated the same as unaffected individuals for employment purposes. It is well-established that the PDA does not impose an affirmative duty on employers to offer maternity leave or to take other measures to assist pregnant employees, but only requires that the employer treat the employee as well as it would have if she were not pregnant. In fact, federal circuit court rulings have routinely held that the PDA requires employers to ignore an employees pregnancy, but not her absence from work, unless the employer overlooks the comparable absences of non-pregnant employees. Yet another reason why attendance policies should be consistently and uniformly enforced.

    Therefore, in the case of a normal pregnancy where there are no complications, the pregnant employee is not entitled to any special treatment, so, theoretically the employer is justified in taking disciplinary action against, or terminating, the employee for violating company attendance and performance policies, as would be the case with any other employee. In order to strengthen the employers position it may behoove restaurant employers to implement a written policy to establish that restricted or limited duty work will not be provided, unless the employee is a qualified individual with a disability under the ADA.

    The ADA may provide protection to a pregnant worker where due to complications with pregnancy, the employee is disabled, as that term is defined under the ADA. A disability under the ADA is a physical impairment that substantially limits a major life activity. Short-term, temporary restrictions are not substantially limiting and do not render a person disabled under the ADA. While applicable regulations state that pregnancy is not, by itself, a physical impairment, case law and guidance from the Equal Employment Opportunity Commission suggest that complications resulting from pregnancy can be an impairment triggering ADA protections.

    If the employee experiences complications during pregnancy that rise to the level of a disability, then the employer must engage in the interactive process and provide reasonable accommodations to the employee, which could include extra break time, an opportunity to snack when necessary, modification of job responsibilities, or a reduced work schedule. Of course, if the employer is unaware of the employees pregnancy complications, then the employer does not have an obligation to engage in the interactive process. But, and this is where potential risk for liability exposure lies, if the employee is able to establish that the employer knew or should have known that the employees condition rendered her disabled under the ADA, and the employer does not offer a reasonable accommodation, a violation of the ADA could occur.

    To make the analysis even more complicated, if a pregnant employee encounters complications with her pregnancy and she is unable to perform the essential functions of her job, then the employees FMLA rights may be triggered. The FMLA requires a covered employer to provide eligible employees with twelve (12) weeks of unpaid leave for serious health conditions, including incapacity due to pregnancy. Under circumstances where the employee is unable to perform the essential functions of her job, it may be necessary to offer the employee unpaid medical leave.

    So when faced with these issues, my advice generally is to tread lightly and to carefully consider the circumstances of each situation distinctly, keeping in mind that, in the case of a normal pregnancy with no complications, the employer typically is well within its rights not to provide special treatment to the employee and to expect the same of a pregnant employee as it does of any other employee.