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Although many women work through their pregnancies without difficulty, some of them with physically demanding jobs or complicated pregnancies might seek accommodation at some point. However, the Americans with Disabilities Act (ADA) does not define pregnancy as a disability or disorder, but as a natural process related to reproduction.

If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women's Law Center (NWLC) and other women's legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.

Let's start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.

In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA's definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act - which means that they'll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.

To ensure that employers' legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women's rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) - draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers' rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.

Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.

Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified "accommodating pregnancy-related limitations under the ADAAA and the PDA" as a priority area for itsenforcement efforts through 2016.

If you are an employee who was not accommodated during your pregnancy or you believe you were discriminated against on the basis of pregnancy, the NWLC would like you to share your story. Employers interested in sharing their experiences accommodating pregnant employees or in consulting about best practices are also invited to contact NWLC, at [email protected].

Keep in mind that when it comes to providing accommodation ideas, Job Accommodation Network (JAN) consultants will brainstorm accommodation ideas for anyone with any type of limitation, including limitations related to pregnancy, whether or not the ADA covers the condition. So, if you're an employer trying to accommodate pregnant employees, or a pregnant employee looking for accommodation ideas to offer your employer, feel free to contact JAN for assistance!

-Linda Carter Batiste, J.D.,

Principal Consultant with comments from the National Women's Law Center

P.S. Speaking of job accommodations, HRThatWorks members can join us for a joint webinar with JAN on Providing Accommodations for Employees with Mental Health Impairments, to be held March 20th at 1PM EST by going tohttps://www1.gotomeeting.com/register/324256449.

I recently responded to the LinkedIn question "How can a company attract and maintain top talent?" in this way:

"Although you'll get many responses about technique and strategy, in my experience that's just the beginning of the answer. There's a significant emotional aspect to the question. In the words of the Buddha, "What comes to you comes from you." So that's what I'll focus on in this answer; the emotional blockages that stop things from coming to you. Ask yourself these questions:

• Are you really willing to do what it takes to attract and keep great talent?

• Are you willing to hire somebody better than you? Or even better than their manager?

• Does driving towards excellence scare you? Are you prepared to hire the top 10%?

• Would you fit in this category?

• Is there such a thing as an "overqualified" applicant?

• Are you open to hiring and managing different types of people? Can you hire without baggage?

• Do you make a conscious effort to show people you care - or is this just your self-talk?

• Do you allow employees to make a difference? To stretch? To find the good in their work?

• Do you let go of poor performers, thus making room for more good ones?

• Does leadership give a hoot about people, or simply growing their bottom-line?

• Is this a fun place to work or is the attitude that fun and work don't mix?

Most importantly, think about your own experience. Why would you work somewhere or stay there? "

In the California case, Richie v. AutoNation, an employee out on CFRA (FMLA) was fired by his employer when he was found to have been working at a restaurant he owned during his leave period. The company's leave policy prohibited outside employment during leave. The court ruled in favor of the plaintiff, stating that FMLA/CFRA (the California equivalent) has a process to follow in shortening FMLA leave if you believe that an employee no longer qualifies for it. You cannot create your own rule or process and, in a sense, do an end run around FMLA protections. The court ruled that because job reinstatement is mandatory, the only way to stop leave properly is by following the CFRA process and questioning the medical opinion of the employee's doctor.

This decision reminds us that ignorance of legal requirements is no excuse. In this case, the company argued that it had a good faith defense because it was not aware of this limitation on managing leave. The court essentially said "So what? It's a mandatory statutory obligation, which you can't avoid." As a different court stated, "A showing that an employee is unable to work in the employee's current job due to a serious health condition is enough to demonstrate incapacity. The fact that an employee is working for a second employer does not mean that he or she is not incapacitated from working in his or her current job."

Some additional notes:

1. The decision reminds us that an employer's policy on secondary employment during FMLA leave must be the same as that for employees who are not on FMLA leave. Otherwise, the policy itself violates the law.
2. Second, the court overturned an arbitration decision in this case which allowed the court's good faith defense. Although review of arbitration is very limited, the court will step in if the arbitrator misapplied the law.
3. Finally, whether it's FMLA leave, ADA accommodation leave, use of PTO or sick pay, etc., if you doubt the veracity of any employee's story (i.e. they were playing soccer or lifting pianos this weekend), you must follow the proper procedures so that you don't find yourself trapped like AutoNation did in this case.

In a recent HR webinar, I asked three highly revealing polling questions. Here they are:

1. What have you done to show your value?

Nobody knows that you're doing a great job unless you tell them. It's not that they don't care about you; it's just that they're running 75mph and barely have time to pay attention to anything but their own work. What effort have you made to get noticed by delivering a report or giving a workshop? Unfortunately, only 21% of respondents said that they created a strategic plan. As Mary Kay once stated, "most people spend more time planning their vacations better than their career." Or, as I might add, their HR department.

1. How excited are you about the HR opportunity on a scale from 1-5 (5 being very excited)?

Half of the respondents described themselves as fairly "excited." Unfortunately, some 43% were just "ok or worse" with HR. Most organizations find the whole idea of HR boring. My guess is that is not the case at the 7% of companies where people said they were very excited about HR! I believe that if 7% can be excited, so can the 93%. It's simply a choice. What have you done in HR lately that goes beyond administrative or compliance requirements? What have you done to help improve the quality of the workplace (getting rid of poor employees and replacing them with great ones is a start), increasing performance management (having a performance management system that actually works), boosting retention, and giving greater love to that 20% of your workforce that produces 80% of results? What are you helping your company do to become more creative, innovative, and interesting?

1. What's stopping you?

I often ask this question in workshops and in webinars. Time is always the most common response (one of those buts again), followed by the company or management. A survey of HR That Works members found that 84% of respondents said they would make better use of the service if they had more time.

Time management is a major issue!

Go to the time management training on HR That Works. Watch the two videos and then start putting them into practice. I would recommend that you start by tracking where your time is going and then eliminate five hours of the uncool, un-valuable work you do every week.