Best Practices - During a Pregnancy
According to data provided by the Council of Graduate Schools during the 2008-09 academic year more than half of doctoral degrees awarded in the United States went to women. Clearly women make up a large portion of the faculty pipeline (although the percentages do vary by discipline). But family formation is more complicated for women faculty than it is for men. Given that the median age for women awarded doctoral degrees is 33-34, and that fertility declines substantially as women age into their late thirties, a strategy of sequencing the tenure-track and then family formation are not likely to be successful.
Although the Chronicle of Higher Education reported that many women attempt to time their deliveries to occur in the early summer, the combination of increased maternal age and reduced fertility may make these efforts unsuccessful.
The Pregnancy Discrimination Act’s standard for treatment of workers affected by pregnancy and related medical conditions (e.g., abortion or childbirth) is a relative standard. It is based on a comparison with how the employer treats other similarly situated workers. A woman experiencing a normal pregnancy is not medically disabled and for however long her healthy pregnancy lasts, she may not be treated less favorably that other faculty employees who are similar in their ability to perform their jobs.
In contrast the FMLA’s mandates regarding the treatment of pregnant employees are prescriptive and include the provision of up to 12 weeks of unpaid, job protected leave with continuation of health insurance benefits. Covered women employees are allowed to use portions of their FMLA leave entitlement if they need to miss work for pre-natal medical appointments.
- Pregnancy and the Americans with Disabilities Act (ADA). Do recognize that a normal pregnancy is not defined as a disability under the Americans with Disabilities Act. However, pregnancy-related complications, including those following childbirth can sometimes be so severe as to create a physical or mental impairment that substantially limits a major life activity, thus creating a disability that is covered by the ADA. In such circumstances an individual might then qualify for reasonable accommodations under the Americans with Disabilities Act. (“Definition of the Term Disability”, Compliance Manual, Volume 2, March 1995, EEOC, Section 902.2.c(3)) Do not hesitate to call your Human Resources Department for clarifications of what conditions qualify as a disability under the ADA and what “reasonable accommodations” can be offered by your institution.
- Handling conflicts between work and pre-natal medical appointments. Given the flexibility inherent in most academic positions, juggling work and pre-natal appointments tends to be less of a problem than in other types of jobs. But, laboratories, medical centers and some other university positions don’t provide as great a degree of work flexibility. Make sure there is leave time available for all faculty, post-docs and graduate students to attend pre-natal appointments. If the employee has been worked for at least 1250 hours in the last 12 months (which need not be consecutive) she is eligible under the Family and Medical Leave Act (FMLA) to take unpaid leave for prenatal care. (29 C.F.R. § 825.112). Additionally, the college’s or university’s employee handbook, or informal policy, may allow employees to use sick leave in order to take paid time off for medical appointments.
- How long should a pregnant professor, post-doc or graduate student be allowed to work? Colleges and universities should allow a healthy pregnant woman, who is capable of performing her essential job functions, to decide for herself whether or not to work throughout her pregnancy. Because a normal pregnancy is not a disability, a pregnant employee who can perform her major job functions is legally entitled to work up until she becomes physically disabled by pregnancy (e.g., during labor). While colleges and universities may offer paid leave that begins prior to the onset of labor, those policies should not be utilized in an attempt to usurp a woman’s decision about how long to work. (29 C.F.R. §1604 Appendix, Questions 6 and 8; 1991; “Practical Guidance on Pregnancy Discrimination”, Sex Discrimination: Technical Assistance Program Manual, January 2002, EEOC, p. 173; EEOC v. W&O, Inc., 213 F.3d 600, 2000)
- Requirements for “doctor’s notes” to continue working. Because normal pregnancy is not considered to be a disabling condition, a pregnant woman cannot be asked to get a note from a doctor or nurse midwife stating that she is healthy and may continue working. (29 CFR § 1604Appendix, Question 6). Even when the employer’s concern is for the health of the mother and the fetus, a doctor’s note may not be required. A federal district court has ruled that even a woman employee who had previously suffered a work-related miscarriage could not be required to obtain a doctor’s note to continue working during a second pregnancy. (Peralta v. Chromium Plating & Polishing Corp., 99-CV-3996, 2000). A doctor’s note may be required only when an employee takes a pregnancy-related medical leave and wishes to subsequently return to work – and then only if the employer also requires such notes from other employees returning from non-maternity-related short-term medical disability leaves.
- Pregnancy-related job restrictions. A college or university should not restrict a healthy, pregnant professor, post-doc, or graduate student from performing any or all of her normal job tasks – unless her performance of the job poses a risk to a third party who is indispensable to the school’s central mission (e.g., a student). If a pregnant woman’s normal job duties (e.g, field work, certain types of research) do pose a risk either to her and/or her unborn fetus, the decision to take the risk is hers to make. (UAW v. Johnson Controls, Inc., 499 U.S. 187, 1991; Dimino v. New York City Transit Authority, 1999; Peralta v. Chromium Plating & Polishing Corp., 99-CV-3996, 2000).
- Making job accommodations for pregnant faculty post-docs, or graduate students. Should you have concerns regarding pregnant employee’s safety (and/or the university’s tort liability) offer to make job accommodations during the pregnancy. Accommodations might include a reserved parking space close to the office, a Tuesday/Thursday or Monday/Wednesday/Friday teaching schedule, additional support from a secretary, research assistant or lab tech, modified job duties, and so on. Although the PDA does not require employers to provide alternative assignments or accommodations for pregnant women, it does require schools to treat pregnant women who seek alternative job assignments (for medical reasons) as favorably as other employees are treated when they seek alternative job assignments for medical reasons. (29 CFR § 1604 Appendix, Question 5). When modified duties are provided, to faculty, post-docs, or graduate students, they must be offered on terms and conditions (i.e., with pay and benefits) that are at least as favorable as are provided to other similarly situated employees who require alternative job assignments for non-pregnancy-related medical reasons.