A Signal to HealthCare Providers From their Pregnant Patients’ Lawyers

The metaphor of ships passing in the night originated (at least according to Google) from a poem by Henry Wadsworth Longfellow, in a compilation called Tales of Wayside Inn. There, Longfellow laments the disconnectedness of the human condition in lines that seem equally applicable to modern life:

Ships that pass in the night, and speak each other in passing,
Only a signal shown and a distant voice in the darkness;
So on the ocean of life, we pass and speak one another,
Only a look and a voice, then darkness again and a silence.

Sadly, these lines are also often applicable to modern law’s relationship to certain realities. Sometimes the law assumes a reality that never existed, and sometimes reality does not respond to the law or changes in it. The disconnect between the two results in outcomes no one intended.

This is true of the relationship between the laws protecting pregnant workers and the realities of being pregnant.

The Americans with Disabilities Act provides reasonable accommodations to pregnant workers if they are disabled as a result of their pregnancies. Until recent years, only the most severe complications could qualify for a reasonable accommodation under this law. Recently, this has changed. The 2008 ADA Amendments Act, and the EEOC’s guidance on Pregnancy Accommodations under the ADA, issued around this time in 2014, have made clear that, while pregnancy itself is not a disability, virtually any physical limitation it causes may be.  As a result, most pregnant workers whose pregnancies cause physical limitations severe enough to affect their work may be eligible for reasonable accommodations.

It contradicts every bit of most people’s lived experience to separate intellectually the fact of being pregnant from the way that it alters one’s experience. Is one having trouble lifting boxes because one is pregnant, or because one’s joints are unusually flexible due to an excess of hormones? Of course, the answer is both. But, in order to be eligible for a reasonable accommodation under federal law, the answer needs to be the latter.

I have heard different explanations for this strange wrinkle in the law. The law may be this way to emphasize that pregnancy is a natural function of a healthy female body, rather than a disability. Another cohort might reject this explanation by arguing that disability is merely a social construct, and, as such, “health” is largely irrelevant to the question of whether a particular aspect of physical difference is disabling. A more cynical explanation is that corporate interests in Congress would like to limit the number of employees whose needs they must accommodate.

Regardless of how the law got to be this way, it now poses a challenge for doctors who have to write notes to get their pregnant patients accommodations.1To help pregnant workers and their physicians, the EEOC has done something refreshing. It has issued a publication aimed at physicians that instructs them on how to navigate the law, including exactly what to say on notes intended to help their patients to get accommodations for pregnancy-related disabilities.

The publication, titled Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work, provides practical advice on many questions that physicians may have about how best to help their patients get what they need to continue, or if necessary, take a break from, working. It covers:

  • What kinds of pregnancy-related limitations are eligible for accommodation;
  • The kinds of accommodations available, including light duty;
  • The circumstances in which employees may be entitled to protected leave; and
  • How to draft an effective doctor’s note that will give patients the best chance at qualifying for a reasonable accommodation under the ADA.

The document is blissfully simple. It was released along with two other position papers: Legal Rights for Pregnant Workers under Federal Law, which provides similar information to employees, and What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data, which informs employees about the government’s planned collection of pay data to address the wage gap.

Documents like these that communicate to others participating in the legal process are like signal lights between ships passing in the night. They help both lawyers and other professionals to navigate the sometimes discordant frameworks that have arisen to suit the needs each profession serves. Such guidelines should exist for every profession that has to interface with EEO law.

If law and reality are the ships, our nation’s lack of legal education of employees is the thick fog between them. Employers are not required to provide employees these helpful guides. Therefore, the impact of Helping Patients and Legal Rights for Pregnant Workers under Federal Law may be limited.

Leaving it up to employees and doctors to find this kind of information is anathema to the purposes of EEOC law. The law is not intended to protect merely the lucky or the vigilant, nor only those who have regular internet access, full English fluency, and the working knowledge of employee rights needed to find documents like this on Google. These kinds of disparities in access exacerbate many of the same structural disadvantages EEOC laws were made to combat.

The law should require accommodation of pregnancy, no matter how it is defined. But if it does not, the law should at least do what it can to neutralize the disparate impact of these kinds of counter-intuitive legal frameworks upon vulnerable workers. Employers subject to Americans with Disabilities Act should be legally required to provide Helping Patients and Legal Rights for Pregnant Workers under Federal Law to pregnant employees.

1 Full disclosure: The Center for WorkLife Law, of which I am a Board member, has been working with doctors to develop guidelines and sample notes for doctors to use that comply with this legal framework. 

Danielle Fuschetti

Danielle Fuschetti is an Associate in the San Francisco office of Sanford Heisler, LLP. She writes on issues affecting women, such as protected leave, pregnancy discrimination and disability rights.

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