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Consider ADA–not just the FMLA–when employee experiences difficult pregnancy

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Most pregnancies proceed normally, with little or no real trouble for the mother. However, that’s not always the case. When things go wrong, the mother-to-be may be entitled to reasonable accommodations under the ADA.

That’s true even if she hasn’t worked for her employer long enough to be eligible for FMLA leave. The ADA kicks in immediately on applying for a position, with no waiting period.

Recent case: Silvia became pregnant shortly after beginning work for Alorica. She told her supervisors she expected this to be a high-risk pregnancy because she had experienced complications during previous pregnancies. That turned out to be correct.

Silvia had to take considerable time off because her baby was in a breech position. She asked for several accommodations, including a shift change. Her supervisor was less than sympathetic, telling her, “I’m not going to treat you special because you are pregnant.”

After Silvia ended up in the emergency room three times for complications, she was fired. Her supervisor said to her, “Sorry, I cannot accommodate you…. This is a company. We need you here.” Silvia sued, alleging disability discrimination.

The company argued that the ADA doesn’t cover pregnancy. A puzzled court disagreed, saying Silvia’s case could go forward. She will have to convince the court that her complications prevented her from performing a major life function. If she can, she may win. (Mayorga v. Alorica, No. 12-21578, SD FL, 2012)

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