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KNOW YOUR RIGHTS: Pregnancy, Workplace Rights, & COVID-19 FAQ

In the midst of the COVID-19 crisis, these are uncertain times. If you are pregnant and working or have had a recent change in your employment status, the crisis may add an additional layer of uncertainty and raise a host of unique questions. A Better Balance is here to help. Below are some frequently asked questions and answers that we hope will provide some guidance and clarity on your rights to paid or unpaid time off, reasonable accommodations, and the right to be free from discrimination if you’re pregnant during the pandemic. We also hosted a webinar covering many of these questions, which you can access below. For health information about COVID-19 and pregnancy, visit the CDC or ACOG for more information or speak with your health care provider.  

For the webinar slides, see here.

PROTECTIONS FROM PREGNANCY DISCRIMINATION

If your employer fires you, forces you out, or cuts your hours related to the COVID-19 crisis and your pregnancy, this may constitute pregnancy discrimination under the federal Pregnancy Discrimination Act or state civil rights laws. Under these laws, your employer cannot treat you differently from other employees based on your pregnancy so if they are taking action against you but not others, that could be pregnancy discrimination. If you believe you have been discriminated against, please call our helpline at 1-833-NEED-ABB or visit eeoc.gov to file a complaint.

Note that if you have been fired, you may also be entitled to receive unemployment insurance. Unemployment insurance programs are administered state by state. For more information, see here.

Under the Americans with Disabilities Act, Pregnancy Discrimination Act, Family and Medical Leave Act, and Families First Coronavirus Response Act as well as many state laws (all discussed below), your employer cannot retaliate against you or punish you for exercising your rights under these laws. If you believe you have been discriminated against, please call our helpline at 1-833-NEED-ABB or visit eeoc.gov to file a complaint. For more information, see here.

RIGHTS TO ACCOMMODATION

If you are pregnant and still working, you may have rights under several federal, state, or local laws to ask for changes in your workplace to ensure your safety.

The Americans with Disabilities Act

Under the federal Americans with Disabilities Act (“ADA”), if you work for an employer with 15 or more employees and have a pregnancy-related impairment, which may include examples such as gestational diabetes, or preeclampsia and that disability substantially limits a major life activity you may have the right to a reasonable accommodation at work. For more information, see here.

What are pregnancy-related impairments or disabilities?  Based on both guidance and case law, both gestational diabetes and severe respiratory issues likely qualify as a pregnancy-related disability because both medical conditions are sufficiently severe and substantially limit a major life activity, and because those two issues may also put someone at greater risk of severe illness if they contract-COVID 19. 

Examples of reasonable accommodation requests related to COVID-19 may include:

  • Making changes to your workplace to reduce contact with others 
  • Temporarily changing some of your job duties 
  • Modifying your work schedule (e.g. staggering commuting times)
  • Temporarily transferring positions
  • Requesting to telework

These types of accommodations are all examples of accommodations cited in the Equal Employment Opportunity Commission’s pandemic-specific guidance and FAQs for workers with disabilities.

How do you ask for an accommodation? 

The first step in the “interactive processis to let your employer that you have a need for an accommodation. You must inform your employer that you’re requesting an adjustment or change at work for a reason related to a medical condition.

You don’t need to use the exact phrase “reasonable accommodation” or “ADA” — you can  use plain English. 

After you’ve asked for the accommodation, your employer can ask you to provide a note from a health care provider to confirm you have a disability. If your boss does request a note, make sure it is as specific as possible and outlines exactly what you can and cannot do at work. 

Make sure your health care provider avoids using vague terms about your condition or vague language about the type of accommodation you need. Your employer need not provide the exact accommodation you ask for and may not have to provide accommodation at all if it imposes an “undue hardship.” For more information see here

You can also encourage your employer to be pragmatic and flexible given the current strain on health care providers and potential risk of exposure by going to a health care provider. For more information, see here.

The Pregnancy Discrimination Act

Under the federal Pregnancy Discrimination Act (“PDA”), if you work for an employer with 15 or more employees, you may have the right to a reasonable accommodation, which can include seeking protective equipment, temporarily moving positions, working from home to ensure you stay healthy while pregnant. The PDA says that your employer cannot treat you worse than other employees because you are pregnant or have a condition related to pregnancy. Thus, if your employer is providing accommodations to other employees similar in their ability or inability to work they may have to provide you with an accommodation. You do not need to have a pregnancy-related disability to have rights under this law. For more information, see here.

Tip: Start looking around at how your employer treats other non-pregnant employees who have needed an accommodation at work. For example, does your employer have a policy of giving light duty only to those with on-the-job injuries? Or did they have no problem helping out folks with nonpregnancy-related disabilities, but refused to help out pregnant workers? If so, this could be evidence of pregnancy discrimination and that they are required to provide you with accommodations.

State/Local Pregnant Workers Fairness Laws

You may have additional rights if your state or city has passed a Pregnant Workers Fairness Law giving workers an affirmative right to accommodations for pregnancy, childbirth, and related medical conditions unless the accommodation would be really difficult or expensive for your employer. Under these state laws, unlike federal law, you can get the accommodation whether or not your employer provides accommodations to others.

The process for getting an accommodation under this type of law usually consists of: 

Asking your employer for an accommodation based on a limitation, medical need, or condition you have related to your pregnancy (doesn’t need to be a disability).

  • Typical accommodations can include light duty, bathroom breaks, temporary transfer, the ability to carry a water bottle on the job. 
  • COVID-related accommodations may include those outlined in the ADA context – e.g social distancing, modified work schedule, teleworking, and personal protective equipment.

Your employer works with you on an individual basis to come up with an accommodation unless it cause an “undue hardship,” i.e. it is very difficult or expensive for them to provide. 

Tip: Thirty states and 5 cities have some form of this law. For more information, see here. New York City also just released COVID-19 specific guidance, reinforcing the city’s pregnancy accommodation law, stating pregnant workers may be entitled to reasonable accommodations during this crisis. We are also working towards a federal Pregnant Workers Fairness Act that would cover pregnant workers across the country. For more information see here.

Occupational Safety and Health Act

Under the federal Occupations Safety and Health Act your employer is required to provide employees with a workplace that is “free from recognized hazards likely to cause death or serious physical harm.”

In response to the COVID-19 crisis, the Occupational Safety and Health Administration (OSHA) has released guidance that provides recommendations on how workplaces can best prepare and protect their workers from COVID-19, including those workplaces where there may be high risk of exposure (e.g. healthcare, lab work, waste management, airlines, and border protection), medium risk of exposure (those that work in close contact with people), and low risk of exposure. OSHA recommends employers enact prevention policies, such as providing hand sanitizer if soap and running water are not available, encouraging workers to stay at home when sick, implementing flexible work policies, and workplace controls such as providing personal protective equipment such as gloves, face masks, and other respiratory protection.

  • Note, however, that this guidance is not law and does not create any new obligations or requirements for employers. For more information, see here.

RIGHTS TO PAID OR UNPAID TIME OFF

The Families First Coronavirus Response Act

Beginning April 1, 2020, if you are eligible under the new federal Families First Coronavirus Response Act (FFCRA), you can, if you are a full time employee, receive 80 hours (10 eight-hour work days) of emergency job-protected paid sick time off from your employer immediately, regardless of how long you have been working there. If you are a part-time worker, you will be paid emergency sick time for the number of hours you work on average over a two-week period

Below is more information on the law and for more detailed FAQs, see here.

Emergency sick leave for your own health needs: Among the reasons you are able to take this leave include if you are subject to a government isolation quarantine order (including a “shelter-in-place” or similar stay-at-home order), you have been advised by your health care provider to self-quarantine due to COVID-19 related concerns, or you are experiencing COVID-19 symptoms and are seeking a medical diagnosis.

Pay: You must be paid 100% of either your regular rate of pay or the federal, state, or local minimum wage where you are employed (whichever one is greater). However, your employer is not required to pay you more than $511 per day for personal care, meaning caring for yourself not others, under emergency sick leave or more than $5,110 total.

Coverage: You are probably covered, including if you are a part-time employee, if you work as an employee in:

  • Any public agency regardless of size; or
  • A private employer with less than 500 employees total

Other coverage exemptions:

  • If you work for a health care provider or emergency responder, the Secretary of Labor has indicated that your employer is not required to pay employees paid sick leave or expanded family and medical leave on a case-by-case basis. This means, if you work for a health care provider or emergency responder, your employer may elect to exclude you from receiving emergency sick time or family leave.
  • Businesses with fewer than 50 employees may be exempt from providing emergency paid sick leave if doing so would jeopardize the business’s viability.

Self-employed: If you are pregnant and self-employed, you may be eligible for a tax credit in an amount equal to 100% of a “sick leave equivalent amount” (or 67% for the family care provisions, where only 2/3 of compensation is available) or “family leave equivalent amount” based on days when you were unable to perform work for the reasons outlined above.

You may also be able to eligible for Pandemic Unemployment Assistance (PUA) under the CARES Act. For more information, see here.

Other important notes:

  • Your employer cannot require you to use other accrued paid leave, including state or local paid leave before using emergency paid sick leave.
  • Your employer also cannot require you to find a replacement to cover your hours while you’re on leave.
  • Your employer cannot retaliate against you, including firing you or disciplining you because you took this leave.

State/Local Paid Sick Time Laws

Laws in your state, county, or city may also help. Twelve states, Washington D.C., and dozens of localities guarantee workers a permanent right to paid sick time. Closure provisions in some of the state and local laws may also enable you to stay home to protect your health during times of public health emergencies. For more information, see here.

  • Note: if you qualify for paid sick leave under the federal Families First Coronavirus Response Act, you may still, in addition, take paid sick leave to which you are entitled under a state or local law.

Some states and cities have also enacted laws, or updated regulations of current laws, to provide emergency paid sick leave during the COVID-19 crisis, which may be especially helpful if you do not meet the eligibility requirements of the federal Families First Coronavirus Response Act. For more information about those laws, contact A Better Balance’s free legal helpline.

Temporary Disability Insurance or Paid Medical Leave

If your state or locality has a short-term disability law (NY, NJ, RI, HI, or CA) or paid medical leave law (WA), you may be entitled to partial wage replacement if you are unable to work due to a serious health need, which could include COVID-19 or symptoms of COVID-19.

Depending on your state’s law, other COVID-19 related needs, such as it not being safe for you to work because you are pregnant and have been advised to reduce exposure to COVID-19 or you may have been exposed to someone who may have COVID-19, may also mean you are eligible for disability benefits, but it may vary by state (in New York, for example, you would likely be eligible for disability benefits in these scenarios). Also note that you may not have job protection while receiving disability insurance or paid medical leave benefits.

If you qualify for paid sick leave under the Families First Coronavirus Act or a state/local paid sick leave law, you may be able to receive disability benefits and FFCRA benefits sequentially (though not at the same time). For more information, see here.

Leave as an accommodation under the ADA, PDA, and State Pregnant Workers Fairness Laws

If you do not yet have COVID-19, but are worried about contracting the virus, you may be able to ask for leave as a reasonable accommodation under the Americans with Disabilities Act, Pregnancy Discrimination Act, or a state pregnant workers fairness laws [see above for more information about each of these laws]. Leave as accommodation does not necessarily have to be paid but does mean your job will be protected. Note that in some circumstances your employer may be allowed to ask for a certification from a health care provider indicating that they recommend you take leave as a reasonable accommodation to maintain a healthy pregnancy.

Temporary Disability Insurance or Paid Medical Leave

If your state or locality has a short-term disability law (NY, NJ, RI, HI, or CA) or paid medical leave law (WA), you may be entitled to partial wage replacement if you are unable to work due to a serious health need, which could include COVID-19 or symptoms of COVID-19.

Depending on your state’s law, other COVID-19 related needs, such as it not being safe for you to work because you are pregnant and have been advised to reduce exposure to COVID-19 or you may have been exposed to someone who may have COVID-19, may also mean you are eligible for disability benefits, but it may vary by state (in New York, for example, you would likely be eligible for disability benefits in these scenarios). Also note that you may not have job protection while receiving disability insurance or paid medical leave benefits.

  • If you qualify for paid sick leave under the Families First Coronavirus Act or a state/local paid sick leave law, you may be able to receive disability benefits and FFCRA benefits sequentially (though not at the same time). For more information, see here.

It depends. If you are eligible for FMLA and you use up your full 12 weeks before you give birth, you may not have the right to take maternity leave once you give birth. However, if you have not used the full 12 weeks, you may still have time available to use for maternity leave. For more information about the Family and Medical Leave Act, its purposes, and eligibility requirements, see here.

If you live in a state with a paid family and medical leave law that is already in effect and are eligible to receive benefits, you may still have time available to take maternity leave to bond with your new baby under the state law even if you took FMLA leave to care for yourself during your pregnancy. You may also have additional rights to unpaid leave under your state’s law.

  • Note that not all states with paid family leave laws guarantee job protection.
  • For more information, see here.

In some states, you may also have the right to receive temporary disability insurance to recover from childbirth – note, however, that temporary disability insurance programs do not always guarantee your job will be protected.

You should also review your company or union policy and/or speak with your employer to see if your company’s maternity leave or temporary disability policy will allow you to take maternity leave even if you needed to take leave while pregnant.

You should also note that if you are eligible for FMLA, you can also use FMLA leave to attend prenatal appointments or an incapacity due to your pregnancy. 

RIGHTS TO UNEMPLOYMENT ASSISTANCE

The CARES Act

The CARES Act, which was signed into law on March 27, 2020, created three new temporary programs to supplement current unemployment compensation laws by providing additional time and funding for beneficiaries of regular UI and creating a pandemic unemployment assistance program for workers not eligible for regular UI.

You may be eligible for pandemic unemployment assistance (PUA) including if you are unable to work because your health care provider advises you to self-quarantine due to concerns related to COVID-19. It is important to remember that if you currently receive health insurance from your employer, you may no longer receive your employer-funded health insurance if you seek unemployment assistance. However, if you work for an employer with 20 or more employees and received health care benefits through your employer, your employer is obligated to offer COBRA continuation coverage.

In order to be eligible for pandemic unemployment assistance—and note that that self-employed and gig workers can also qualify for PUA—you cannot be eligible for regular unemployment insurance, including because you exhausted regular or extended unemployment insurance benefits, and you must be able to self-certify that you’re partially or fully unemployed OR unable and unavailable to work because:

  • You have to quit your job as a direct result of COVID-19
  • you have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking diagnosis
  • a member of your household has been diagnosed with COVID-19
  • you’re caring for a family member or household member who has been diagnosed with COVID-19
  • your child’s school is closed due to COVID-19 or a facility for someone for whom you are the primary caregiver is closed due to COVID-19 and you need that facility to be operating in order to go to work
  • you are unable to reach your workplace because of a quarantine imposed as a result of COVID-19
  • You can’t go to work because your health care provider advises you to self-quarantine due to concerns related to COVID-19
  • You were scheduled to start a job and don’t have a job or are unable to reach your job because of COVID-19
  • You have become the breadwinner or major support for your family because the head of household has died from COVID-19
  • Your place of work has closed as a direct result of COVID-19
  • You meet any additional criteria set forth by the Secretary of Labor.

As unemployment insurance is administered state by state, you should search for information provided by your state about unemployment insurance. Find about more about your state’s program and how they will be implementing the new CARES Act law here

ADDITIONAL INFORMATION & RESOURCES

 Please note that this FAQ does not constitute legal advice. It is possible that additional provisions not described in this fact sheet may apply to your specific circumstances or category of employment. Please visit A Better Balance’s COVID-19 resource page for more details and/or call our free, confidential legal helpline at 1-833-NEED-ABB (1-833-633-3222) if you have questions about your particular needs.

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