Imagine this: your best, most reliable server walks up to you tonight during dinner service and tells you that she is four months pregnant. Your mind starts racing. What do you do to help her during this important phase of her life while, at the same time, safely navigate your restaurant through the multitude of legal issues that may arise as a result of her pregnancy? Because this illusion turns into reality on a daily basis for restaurateurs, it is vital for your company to have a solid understanding of the legal issues that may be presented by a pregnant employee in your workforce.
Furthermore, pregnant women often need accommodations for their pregnancy – additional bathroom breaks, rest periods, help in lifting heavy objects, doctor visits, etc. However, while the amendments to the Americans with Disabilities Act require employers to provide reasonable accommodations to disabled employees (including many employees with medical complications arising from pregnancies), pregnancy itself is not considered a disability. Federal legislation was recently introduced in Congress that would “require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions, unless this creates an undue hardship on the employer,” but this legislation, deemed the Pregnant Workers Fairness Act, is still working its way through Congress and has not yet been signed into law. Some states, however, have passed laws requiring private employers to provide at least some accommodations to pregnant workers. Therefore, while many restaurant owners are not presently required to provide an accommodation to a pregnant worker, this determination must ultimately be made on a case-by-case basis and may require the consideration of applicable state laws. As such, if your restaurant is faced with a pregnant employee seeking accommodation(s), it may be prudent for your restaurant to seek the advice of legal counsel.
Other laws, including the Family and Medical Leave Act (“FMLA”), must also be considered when a member of your workforce becomes pregnant. The FMLA provides for up to 12 weeks of unpaid leave within a 12 month period for serious health conditions, provided the employee has worked for at least a year and worked a minimum of 1,250 hours, and the company has more than 50 employees within a 75 mile radius. The leave can be taken intermittently (an hour or hours at a time), but the 12 week limitation cannot be exceeded. An employer must return an employee to the same or similar position after returning from FMLA leave.
Each of these issues, however, is not without a solution. One of the most important tools restaurants can maintain and deploy when an applicant or employee is pregnant to maintain a clearly written policy that addresses the myriad of issues that may be presented. For example, your policy could not only address the issues discussed above, but also other issues such as dress code and the restaurant’s expectations for pregnant employees. By utilizing such a policy, you can help minimize your exposure to costly lawsuits and damaging PR while, simultaneously, assist your employees during this monumental time in their life.
This article is a broad overview of some of the legal issues restaurants may face when presented with a pregnant applicant or employee. It is not, however, intended to be an exhaustive list of the legal issues. If you have questions and/or believe you might be impacted by these or similar issues, contact legal counsel.