MAY / JUNE 2022 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Pregnancy Discrimination and Accommodations Employers be aware Workplace pregnancy discrimination is illegal in every state, under both federal and state law, but what about reasonable accommodations for pregnant employees? Last summer, Indiana’s Pregnancy and Childbirth Accommodation law (IC 22-9-12) went into effect. Indiana joined a majority of states with similar laws. The law applies to employers with 15 or more employees. Under the law, an employee may request an accommodation for her pregnancy, childbirth or any related medical conditions, in which case an employer must respond within a reasonable time. Employers must engage in an interactive process to assess potential reasonable accommodations. Reasonable accommodations may include additional or longer breaks, temporary light duty assignments or temporary transfer to a less strenuous or hazardous position (if available), modified work schedule, flexible hours, remote work, ergonomic adjustments to the workplace (e.g., modified work equipment or seating), or assistance with manual labor (e.g., lifting). Retaliation is prohibited. An employer may not retaliate against a pregnant employee for requesting an accommodation. Retaliation is any adverse employment action because of the request and may include actions such as reprimanding the employee or giving a lower performance evaluation than should have been given, transfer to a less desirable position, verbal abuse or hostile comments, increased scrutiny, making the employee’s work more difficult (e.g., changing the employee’s schedule to conflict with medical appointments), or more obvious repercussions such as termination, demotion and discipline. Under Indiana’s law, an employer is not required to make the accommodation proposed by the employee, or to make an exception to its policies; however, there are other federal laws that may be implicated and must be considered, including the Pregnancy Discrimination Act, Family Medical Leave Act and Americans with Disabilities Act, as amended. Those laws may require that an accommodation be provided. The PDA requires that pregnant women be treated equally. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, her employer must treat her like any other employee who has a temporary medical condition, injury or disability. If the employer, for example, offers accommodations (e.g., light duty, alternative assignments, leave) to non-pregnant employees (which is often the case with workers’ compensation cases where employers are incentivized to get the injured worker back to work), then the employer must do the same for pregnant employees in the same or similar positions. The PDA prohibits all forms of workplace discrimination based on pregnancy, including with respect to hiring, termination, pay, performance reviews, promotions, discipline, training and job
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