Labor Days News and analysis from Kelley Drye’s labor and employment practice Wed, 03 Jul 2024 05:25:06 -0400 60 hourly 1 UPS Settlement Signals That Pregnant Workers Are Expecting Job Accommodations Thu, 08 Oct 2015 16:43:15 -0400 Last week, UPS settled its long-running case with Peggy Young, the employee whose case went up to the Supreme Court after she was denied light duty. As many will recall from an earlier blog post, the high court found that UPS’s policy of refusing light duty to pregnant employees violated the “Pregnancy Discrimination Act” (“PDA”). See, Young v. United Parcel Service, 575 U.S.___(2015). Even before the case reached the Supreme Court, the company had changed its policies regarding light duty for pregnant workers and made temporary light duty assignments available to pregnant employees. The Supreme Court reasoned that if UPS provided light duty to some employees (such as those injured on the job), it had to justify why it did not offer that light duty to pregnant employees.

The details of the settlement were not revealed, but UPS stated that its denial of Young's light-duty request in 2006 didn't run afoul of the PDA. The company argued that federal law doesn't require accommodations or special treatment for pregnant employees, and added that it had simply treated Young the same as other workers with similar lifting restrictions stemming from an “off-the-job injury or condition.”

It is clear from the statements that this was the end of a long, and likely expensive, journey for UPS. “We are grateful that this case has finally come to a just conclusion, and we thank UPS and its counsel for their cooperation. Litigation is not for the faint of heart or the impatient. Not many victims of discrimination would have had the grit that Peggy Young displayed in sustaining this struggle for nine years,” Young's attorney, Sharon Fast Gustafson, said in a statement Thursday.

UPS is not the only company that has modified its policies regarding the treatment of pregnant employees to comply with developments on the federal, state and local level. In addition to the Supreme Court decision, a number of localities – like New York City with its “Pregnancy Fairness Act” - have passed statutes that specifically require the accommodation of pregnant employees in the workplace. In the case of the New York law, the statute lists specific accommodations that must be considered and provided, and defines ‘pregnancy’ in an expansive fashion – to include employees who are undergoing fertility treatments and need accommodations after giving birth. You can read the guidance the EEOC issued in 2015, which details how an employer must accommodate pregnant workers.

In our Labor and Employment practice, we have seen employees become more strident in their demands for workplace accommodations, in some cases starting from very early in the pregnancy. Many laws consider “pregnancy” to include the spend before pregnancy (such as an employee receiving fertility treatments) and accommodations needed after an employee gives birth. Therefore, if your company still has a policy that favors employees with Workers Comp injuries and treats them differently from other employees with temporary injuries or conditions, you may want to re-think that policy.

In my practice, I have seen an uptick in accommodation requests from pregnant employees, who now seem to be more vocal about their needs for job modifications. Thus, even if you are not in a locality which does not have a pregnancy statute like New York City’s, you would be well advised to review your policies regarding pregnancy accommodations.

Massachusetts’ Expanded Parental Leave Law Goes into Effect Next Week Wed, 01 Apr 2015 12:20:19 -0400 As we previously reported, the Commonwealth of Massachusetts enacted a law earlier this year that replaces its maternity leave statue with one affording both women and men with up to eight weeks of unpaid job-protected parental leave. The new laws takes effect April 7, 2015.

While FMLA-eligible employees (both male and female) may already be entitled to up to 12-weeks of bonding leave following the birth or adoption of a child, the Massachusetts leave law will permit such employees to take an additional eight weeks of parental leave if they have already exhausted their FMLA entitlement for reasons other than parental leave. Moreover, while the FMLA applies to employers with 50 or more employees, the Massachusetts parental leave law applies to employers with six or more employees.

Massachusetts employers—or those with employees in the Commonwealth—should take this opportunity to review their leave policies and ensure their leave administrators are aware of these new leave rights available to new dads.

What’s Good for the Goose Is Good for the Gander: The Supreme Court’s Decision in Young v. UPS Wed, 25 Mar 2015 17:32:37 -0400 Does an employer have to offer a pregnant employee exactly the same physical accommodations as it does to “other” employees? Which “other” employees? And how many “other” employees? In a case involving the Pregnancy Discrimination Act, the U.S. Supreme Court’s 6-3 decision today in Young v. United Parcel Service, Inc., No. 12–1226, 575 U. S. ___ (2015) raises these questions without really answering them – leaving a lot of work for the lower courts, and parties in litigation, to do. The Court’s decision today, however, makes clear that an employer who grants accommodations to non-pregnant employees should think twice before denying them to pregnant employees. According to the Supreme Court, that denial may amount to evidence of intentional (and unlawful) discrimination.

Peggy Young, a UPS driver, became pregnant in 2006. Her doctor told her that she should not lift packages weighing more than 20 pounds during her first 20 weeks of pregnancy and not more than 10 pounds after that. UPS allowed light-duty assignments for certain employees, including drivers who had become disabled on the job, drivers who had lost their Department of Transportation (“DOT”) certifications, and employees who had disabilities covered by the Americans with Disabilities Act. But not for anyone else, including Peggy Young.

Young asked for the same light duty. UPS’s occupational health manager told her that she would not be allowed to work during her pregnancy because she couldn’t satisfy the lifting requirements (sometimes of packages weighing up to 70 pounds). Another manager confirmed that she was “too much of a liability.”

So Young stayed home for the remainder of her pregnancy. She also promptly sued UPS, alleging that UPS’s refusal to give her light duty was intentional discrimination. Her theory was that UPS gave light duty to certain other employees, but not pregnant employees. That, she claimed, violated the Pregnancy Discrimination Act (“PDA”), a 1978 law amending Title VII of the Civil Rights Act of 1964, which prohibits intentional sex discrimination. The PDA contains these magic words: “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work[.]”

In court, Young argued that UPS’s refusal to give her light duty meant that she was not “treated the same” as “other persons” (like disabled employees, or those who had lost DOT certifications) who were “similar in their . . . inability to work.” UPS said that, since Young was not in the categories of employees for whom UPS gave light duty, UPS hadn’t discriminated against her at all – it had simply treated her like any other “relevant” person who didn’t fall within a covered category. UPS’s argument convinced the trial court, which granted summary judgment, and the Fourth Circuit Court of Appeals, which affirmed the lower court’s decision.

But today, the Supreme Court disagreed. Justice Stephen Breyer’s majority opinion was, in some sense, critical of the positions of both Young and UPS. Young’s argument that as long as an employer accommodates only a subset of workers, pregnant workers must receive the same treatment “proves too much”: according to the Court, the fact that the PDA requires an employer to treat pregnant workers the same as “other persons” doesn’t mean it must treat a pregnant worker the same as “any other person.” That means that if an employer grants an accommodation or benefit to a single employee, the law doesn’t require an employer to automatically give pregnant employees the same thing.

But the real impact of the Court’s decision was its rejection of UPS’s position. The Court held that if an employer accommodates a “large percentage” of non-pregnant workers but refuses to offer the same to pregnant workers, that refusal may amount to evidence of intentional discrimination – at least enough evidence to survive summary judgment and create an issue for trial. In this case, Justice Breyer wrote, UPS granted light duty to “numerous” employees who could not drive or lift packages, but not for pregnant employees.

So it’s clear that Peggy Young is back in the game and is heading back to the trial court, thanks to the Supreme Court. What is much less clear is the standard an employer is supposed to use in determining when it must offer a pregnant employee the same accommodations as non-pregnant employees. The Court found that the fact that “numerous” “other employees” got light duty was potential evidence of intentional pregnancy discrimination. How many employees are “numerous,” and which “other employees” an employer should take a look at, will be resolved only through more litigation in the lower courts. As a practical matter, employers should eye any policy treating pregnant workers differently from significant groups of other employees with suspicion.

Score One for Dads in Massachusetts: New Law Requires Small Employers To Provide Paternity Leave Wed, 04 Feb 2015 10:43:45 -0500 baby_dad_02Under a new law signed by the former Massachusetts governor on January 7, 2015—just one day before he left office—fathers in Massachusetts will be guaranteed up to eight weeks of unpaid job-protected paternity leave following the birth or adoption of a child.

The new law expands the scope of Massachusetts’s existing maternity leave statute to afford parental leave on a gender-neutral basis. Where both parents work for the same employer, the law affords only eight weeks of leave between the two of them.

While the federal Family and Medical Leave Act already affords up to 12 weeks of unpaid leave following the birth or adoption of a child, the FMLA applies only to businesses with more than 50 employees. The Massachusetts parental leave law applies to employers with six or more employees, so will extend leave rights to male employees of much smaller businesses. The state law also eliminates the one-year-of-service requirement to be entitled to leave under the FMLA. Instead, parental leave must be available to employees who have worked for at least 3 consecutive months as a full-time employee.

The Massachusetts law also provides that if employers agree to extend parental leave beyond the eight weeks under the statute, that extended leave must be treated as job-protected leave. One limited exception to this rule applies where the employer informs the employee in writing and prior to the commencement of any extended leave that taking longer than eight weeks of leave may result in denial of reinstatement rights.

The new Massachusetts law takes effect on April 7, 2015. President Obama recently announced that paid parental leave would be provided to federal employees, and it is likely that other states may soon follow suit with gender-neutral parental leave policies.

New Illinois Law Requires Employers to Provide Reasonable Accommodations for Pregnancy-Related Conditions Tue, 03 Feb 2015 11:49:48 -0500 Public Act 98-1050 went into effect on January 1, 2015, in Illinois. See 775 Ill. Comp. Stat. Ann. 5/2-101. The new law requires employers with one or more employees to provide a reasonable accommodation for job applicants and employees who are: (1) pregnant; (2) are recovering from childbirth; or (3) have medical or common conditions related to pregnancy or childbirth unless the employer can show the accommodation would cause an undue hardship.

The law requires all employers in Illinois to post in a conspicuous location a notice prepared by the Illinois Department of Human Rights (IDHR) and to include in any employee handbook information regarding an employee's rights regarding pregnancy in the workplace and an employer's obligation to accommodate pregnancy. In order to meet the posting requirements of Public Act 98-1050, an employer must post the English version of the Notice in a conspicuous location on the premises of the employer where notices are customarily posted. An employer may also post the Spanish version of the Notice, but may not post the Spanish version in lieu of the English version. Hard copies of the Notices are not available from IDHR. Employers must download the Notice from the IDHR’s website.