UCSF/UC Hastings Suzanne Seger, Jamie Dolkas, Esq. MTS, CNM, - - PowerPoint PPT Presentation

6/7/2014 1

I Just Need a Note:

Pregnancy Discrimination, Workplace Accommodation, & the Obstetric Provider’s Role

UCSF/UC Hastings

• Suzanne Seger,

MTS, CNM, Associate Clinical Professor UCSF School of Medicine

No disclosures

• Jamie Dolkas, Esq.

Director of Women’s Leadership at Center for WorkLife Law, UC Hastings College of the Law

No disclosures

Question 1 Karen is 32 wks pregnant and works as a baker. She mentions at her prenatal visit that it is becoming more difficult to lift the 50 lb sacks of flour she must use to make products. She is considering stopping work. You should:

T e l l h e r t h e s . . . A s k i f s h e h a s . . . C h a r t t h e f u n c . . . W r i t e a n

• t

e r . . .

0% 4% 39% 58%

• A. Tell her the safest plan is to stop work
• B. Ask if she has spoken to her employer

about the plan

• C. Chart the functions which are becoming

difficult for her and why

• D. Write a note reflecting your medical
• pinion that it is time to stop work

Question 2 The percentage of women who work while on their maternity leave is:

5% 16% 34% 46%

5% 28% 45% 22%

• A. 5%
• B. 16%
• C. 34%
• D. 46%

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Question 3 Judith is a 31 yo nullipara at 26 weeks of pregnancy. She reports that she is upset about a recent email noting that she would not be promoted due to her pregnancy. She believes her supervisor sent it to her in error. You should:

T e l l h e r t h a t . . . D

• c

u m e n t t h e c . . . A s k h e r w h a t s . . . A l l

• f

t h e a b

• .

. .

0% 19% 48% 33%

• A. Tell her that she should sue her employer
• B. Document the conversation in her chart to

be helpful for later in case she needs it

• C. Ask her what she wants to do with this

information

• D. All of the above

Objectives

• Scope of the problem & significance
• History of pregnancy discrimination laws &

protections

• Pregnancy disability leave & eligibility

limits

• Effective and clear documentation in the

medical record for pregnancy accommodations

Pregnant Women & Work

• 70% of women who are pregnant and/or

parenting are in the workplace

(EEOC)

40% of mothers are the primary breadwinners for families in the United States today

(Glynn, S.J. Center for American Progress 2012)

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Pregnancy & Discrimination

• Is not a thing of the past
• Continues to pervade private and public

work environments.

Pregnancy Discrimination Cases

• Are on the rise

1000 2000 3000 4000 5000 6000 7000 1997 2010 EEOC Pregnancy Discrimination Charges 2011

Pregnancy & Work

• Very few studies in obstetrics and

midwifery on the topic

• Early studies addressed concerns

around workplace exposures and teratogens for the fetus

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Prevalence?

• In a structured interview study of 165

working women, 69% reported at least

• ne form of workplace adversity during

pregnancy

• Higher prevalence in public vs. privately

insured women

(Cooklin, Rowe & Fisher, 2007)

Low Wage Workers

• Are disproportionately affected.
• Disparities in employment discrimination

with the poorest bearing the largest burden.

(Terman, 2012, Farrell, Dolkas & Munro, ERA)

Hiring Practices Study

• In a study of interview and hiring

practices of candidates with identical resumes, 79% of employers were less likely to hire a mother.

*SOURCE: Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J. SOC. 1297, 1316 (2007).

Pregnancy & Disability Leave Pearls

• Leave legislation varies state to state
• Leave is FINITE no matter the worker’s

circumstance

• Partial wage replacement is usual
• Documentation in the medical record is

essential

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Pregnancy Leave

• Many workers will not qualify due to the

nature of their workplaces

• Not all employers are held to federal

and state standards

• California:

Supplemental Disability Insurance (SDI) four weeks before due date & six weeks after for healthy vaginal birth California Paid Family Leave Act six weeks at 55% pay to care for someone Family Medical Leave Act 12 weeks unpaid leave with job protection

Three Categories of Pregnancy-Related Legal Protections At Work

1) Discrimination protections 2) Leave entitlements 3) Pregnancy accommodations

Pregnancy Accommodation Defined

The right of pregnant workers to receive reasonable workplace accommodations for pregnancy- related impairments/disabilities.

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Typical Accommodation Requests

• Periodic rest breaks
• No standing more than 8 hours
• Temporary schedule change – includes fewer

hours or modified hours

• Restructuring of job duties
• Temporary light duty or transfer to another

position

• Leave time to address pregnancy-related

illness

Why Pregnancy Accommodations Are Important

1) Enable pregnant workers to continue working safely and supporting themselves/families 2) Continued employment and associated benefits (health insurance, etc.) 3) Termination and forced unpaid leave causes stress and other problems 4) Big impact on low wage workers who tend to have less flexibility, benefits, and protections

Business Case for Accommodations

Providing an accommodation allows an employee to stay on the job which saves the employer on turnover costs. Accommodation also promotes worker morale, maintains consistency, and cultivates worker loyalty.

Legal Framework (Federal)

1) Title VII of the Civil Rights Act of 1964 (“Title VII”) 2) Family and Medical Leave Act (FMLA) – 1993 3) Pregnancy Discrimination Act (PDA) – 1978 4) Americans with Disabilities Act (ADA) – 1990, amended in 2008

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Family and Medical Leave Act

12 weeks unpaid, job-protected leave, for employee’s own or immediate family member’s serious illness, or baby-bonding.

To qualify, workers must meet the following requirements:

− Covered employer: Must work for employer with 50 or more employees in a 75-mile radius; − Eligible worker: Must have worked for employer at least 12 months and 1,250 hours in year prior to taking leave. AND − Taking leave for a qualified reason:

To care for a spouse, child, or parent with a serious health condition; For their own serious health condition, or To bond with a newborn child, newly adopted child, or recently placed foster child.

Protections:

− Job protection: Employees who take FMLA leave must be restored to same or equivalent job. − Benefits: Entitled to continuation of group health benefits (up to 12 weeks); plus retention of accrued benefits and seniority. − Retaliation: Protection from discrimination and/or retaliation.

FMLA Limitations

1) FMLA has strict coverage requirements –

– In order to qualify, a worker must:

• Be taking leave for a qualifying reason (for employee’s own or immediate family

member’s serious illness, or baby-bonding),

• Have worked for employer at least 12 months and 1,250 hours in year prior to

taking leave;

• Work for an employer with at least 50 employees within a 75-mile radius

– These requirements automatically exclude about half of all workers.

2) Leave under FMLA is unpaid; federal law does not require paid leave of any kind.

– Even when workers are eligible for unpaid leave under the Family and Medical Leave Act, they often cannot afford to take it.

Accommodations Under the

Pregnancy Discrimination Act

An employer must treat pregnant women with impairments the same as it treats non-pregnant workers with similar impairments. Thus, an employer must make an accommodation for pregnant employees if the employer has or would have done so for any of its non-pregnant employees.

Americans with Disabilities Act

Under the ADA, an otherwise qualified employee with a disability is entitled to reasonable accommodations in the workplace

Although ordinary pregnancy is not an impairment, an impairment that arises due to pregnancy may constitute a disability

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Americans with Disabilities Act

As a result of recent 2008 amendments to the ADA, many pregnancy-related impairments are considered disabilities under the ADA:

• Women impaired by pregnancy-related

conditions are protected from discrimination

• n the basis of those impairments; and
• Employers have a duty to make reasonable

accommodations to enable pregnant workers to continue working during pregnancy.

ADA Interactive Process

Employer and employee have a duty to participate in “good faith” interactive process to determine appropriate reasonable accommodation.

*Tip: Pregnancy accommodation needs are often met

when employer and employee have a conversation about what the employee actually does (as opposed to her job description, which is likely different on paper than in practice) and brainstorm together about how to address her temporary limitations.

Interactive Process Considerations

1) What accommodation is requested? 2) What duties can the employee still perform within those restrictions? 3) What are the employee’s job duties/tasks that require an accommodation, and how often are these tasks usually performed? 4) What changes would enable employee to per- form task or accommodate restrictions, such as help from coworkers, or shifting certain duties?

Notes for Work-Related Duty

Can do more harm than good if not written with attention to key components

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Clinician Assumptions

• Patients understand their workplace

requirements for taking disability leave

• Doctors’ notes carry the same authority

in the patient’s workplace as they might in the health care environment

Clinician Challenges

• Time limitations
• Common discomforts or issues not

mentioned until patient wants to go on disability

• Patient hope that a note will solve work

difficulties

Elements of a Note

• Date, Time,

Patient’s condition and its effects on the work duties

• Modifications

requested

• That the patient can

still perform the essential functions

• f her job
• Discussion of

patient’s knowledge

• f what she is

eligible for

• Discussion of the

need to have an interactive process with employer

Common Pregnancy Conditions

Underlying Conditions Description Other medical conditions that can produce similar symptoms Bodily function affected Reasonable accommodations

Lumbar lordosis

Pregnant women experience back pain through a variety of mechanisms, including the sway-backed posture (lumbar lordosis) caused by a growing belly and the hormones of pregnancy loosening up the joints, muscle spasms and “Braxton-Hicks”

• contractions. Pregnancy may also exacerbate pre-

existing back problems. Back pain, if severe, can interfere with major life activities (standing, reaching, lifting, or bending). Back injury; degenerative joint disease; scoliosis; arthritis muscular dystrophy and kidney infection or stones Musculoskeletal Use of a heating pad; sitting instead of standing; lifting assistance or limitations; using assistive equipment to lift; modification of the duties of the job, such as temporary light duty

Carpal Tunnel Syndrome

Tingling, pain, numbness and joint stiffness in hands and wrists is common in late pregnancy due to changes in fluid composition and increased amount

• f pressure on median nerve in wrist. Carpal tunnel

syndrome is an impairment that is much more prevalent in pregnant women than the population generally. Also common in nonpregnant people who do repetitive small motions with hands/ wrists (i.e. typing) or after forearm/ wrist injury Musculoskeletal; neurological Occasional breaks from manual tasks or typing; specialized programs that allow for dictation instead of typing

Hyperemesis gravidarum

Pregnant women can have nausea and/

• r vomiting

that limits their ability to work in certain settings/ certain times of day. Severe nausea and vomiting in pregnancy can result in weight loss, dehydration, and/

• r electrolyte imbalance. It occurs

most commonly in the first trimester but can extend throughout the entire pregnancy and all day long. Chemotherapy for cancer; hepatitis; vestibulitis; a variety

• f GI disorders

(gastroparesis, dyspepsia, inflammatory bowel disease) Digestive Permission to take more frequent bathroom breaks; permission to eat small snacks during work hours; a cot for lying down; modified schedules Reprinted by permission of the Yale Law & Policy Review, Inc., from 32 YALE L. & POL’Y REV. 97 (2013).

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“Essential Functions of Her Job”

With Certain Accommodations patient can continue to work!

Case Study

• A pregnant airport security work comes to prenatal

clinic & states she needs a note not to wear her bowtie as part of her uniform. She feels as if she cannot breathe. Her supervisor has had her obtain notes for all workplace accommodations from bathroom breaks to water bottles noting he did not want to be perceived as giving her special treatment

A Bad Note Would Say

• Date
• Dear:
• Ms. Blank is our patient and she is

pregnant and can’t wear her bowtie as part of her uniform

• Signed name, license number

A Better Note Would Say

• Date

Dear:

• Ms. Blank is our patient who is pregnant and

able to perform the essential functions of her

• job. She needs an accommodation to not

wear her bowtie due to increasing neck girth until {due date}

• Signed, name, license number

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Case Study

• A woman is seen for her post partum

visit after a preterm birth at 36 weeks. She is six weeks out and her son is struggling with weight gain &

• breastfeeding. She is stressed as

return to work will mean travel that will disrupt breastfeeding and pumping.

A Bad Note Would Say

• Date
• Dear:
• Ms. Blank gave birth and is struggling

with breastfeeding. She needs two more additional weeks to be at home with her infant.

• Signed name, license number

A Better Note Would Say

Date Dear:

• Ms. Blank was seen and evaluated in our office today after giving

birth to a late preterm infant. This pregnancy complication has affected her infant’s ability to gain weight and breastfeeding. For her sons development, she is requiring an additional two weeks for monitoring for weight gain and will have additional doctors

• appointments. She is not able to return to work or travel at this
• time. She will be reevaluated on [date] to assess her readiness to

return to work. Signed license number

Pregnancy Accommodation Working Group

• Joint venture UCSF/UC Hastings
• Standardized letters for obstetric

providers

• Ongoing work to address pregnancy

discrimination and education around work needs for pregnant women