Pregnant employees have rights under federal, state, and local laws and regulations. If you violate these laws and regulations, you could be sued for pregnancy discrimination. For a medical, dental, optometry, or veterinary practice, dealing with a pregnancy discrimination lawsuit or claim can be hugely disruptive. These claims are expensive and stressful. They take precious time away from running your practice. It’s far better to prevent pregnancy discrimination claims from arising in the first place.

You must take the right precautions to prevent claims of pregnancy discrimination. Even the perception of discrimination could trigger a claim.

Who is Protected Against Pregnancy Discrimination?

The pregnancy discrimination laws apply to employees and job applicants. An associate doctor or dentist will be protected by applicable anti-discrimination laws if she is classified as an employee. All other employee staff members and applicants will be protected as well.

Are small healthcare practices covered by pregnancy discrimination law?

Federal pregnancy discrimination law applies only to employers with 15 or more employees, so if your practice has fewer than 15 employees, you are not subject to the federal Pregnancy Discrimination Act (PDA). The federal Family Medical Leave Act also contains provisions that apply to pregnant employees but only for employers with 50 or more employees.

However, that probably does not let you off the hook. State and local laws often do apply to small businesses. In California, if your practice has only five (or more) employees, you are subject to the state’s pregnancy discrimination laws. Some states don’t require any minimum number of employees at all, so it’s important to know your state and local laws.

What is Pregnancy Discrimination?

Pregnancy discrimination is considered a form of sex discrimination. It occurs when an employer treats employees and job applicants less favorably than other employees and applicants because of their pregnancy.

This includes:

• Not hiring an associate or staff member because she is pregnant
• Firing or demoting a pregnant employee.
• Limiting pregnant employees’ opportunities for promotion.
• Not providing reasonable accommodations.
• Treating pregnant employees differently than employees with temporary disabilities.
• Not providing the same or a similar position to employees after they return from pregnancy leave.

Examples of Pregnancy Discrimination

Not allowing a staff member to take time off for doctor visits for prenatal care, when you have allowed other staff members to take time off for medical care for ongoing conditions.

Asking an applicant if she plans to have children or have more children, and she says she is pregnant now. Telling her you can’t hire her now, but she should come back after her baby is born and she is ready to work.

Potential Costs of a Pregnancy Discrimination Claim

In addition to the costs in money and time, pregnancy discrimination claims can be particularly disruptive to healthcare practices, which often pride themselves on being a close-knit team.

Discrimination claims can rupture any plans for making an associate an eventual partner. They can generate negative publicity in the community. And they can lower the morale of other staff members.

If an employee wins her pregnancy-discrimination claim, you may be liable for her back pay, front pay, compensatory damages for her emotional pain and suffering, and punitive damages, meant to punish you and make you an example.

You may have to take the action that you didn’t take previously, such as hiring an applicant you didn’t hire, promoting an employee you didn’t promote, or reinstating an employee you fired.

You may also have to pay for the employee’s court costs, attorneys’ fees, and expert witness fees.

You may have to take additional actions, such as taking concrete steps to minimize the chance that pregnancy discrimination will occur again in your practice.

Reasonable Accommodations

The federal Americans with Disabilities Act (ADA) requires that you work with your pregnant employee to find ways that she can perform the essential functions of her job while she is pregnant, either with or without reasonable accommodations.

You are not required to provide accommodations that would create an undue hardship. However, you must engage in a good-faith interactive process -- that is, engage in a dialogue with the employee -- to search for ways that she might be provided reasonable accommodations, if necessary, in order to keep on performing her job.

California law also requires reasonable accommodations, which may include changing work schedules, changing job duties, providing electronic or mechanical assistive devices, and allowing leave time for medical care.

California’s Pregnancy Discrimination Laws

California’s pregnancy discrimination laws, unlike federal law, apply to employers who have five or more employees. They cover permanent employees, temporary employees, interns (even if unpaid), and applicants.

Pregnancy discrimination laws are part of the California Fair Employment and Housing Act (FEHA), but other California laws (as well as federal laws, when applicable) may also apply: California’s Pregnancy Disability Leave law and the California Family Rights Act.

In California, pregnant employees are entitled to pregnancy disability leave of up to four months with the right to return to the same or a similar job. After their child is born, employees have the right to a reasonable amount of break time and the use of a private room to express breast milk. California employees are also protected against discrimination, harassment, and retaliation on the basis of their pregnancy.

Steps to Take to Help Prevent Pregnancy Discrimination Claims

You should always base your actions on the applicable laws, not on what you personally think might be in the best interests of a pregnant employee.

Make sure that you treat a pregnant employee the same way you would treat an employee who is not pregnant but has a similar ability or inability to work.

Know and follow all applicable laws and regulations. These laws may include the federal Pregnancy Discrimination Act, EEOC regulations, your state laws, and any local laws that apply. Laws and regulations may change frequently. You are responsible for keeping up with any changes. The attorneys at Dental & Medical Counsel can help keep you informed of any changes and updates that you need to know and help ensure that you remain in compliance with the changing legal and regulatory environment.

Put policies regarding the rights of pregnant employees in writing. Include your practice’s policies on reasonable accommodations, harassment, discrimination, retaliation, paid or unpaid time off for medical appointments, paid or unpaid leave, and break time. We can help you develop an employee handbook or other written documents. Having these written procedures in place not only informs your employees of their rights, but it also could serve as a defense if you ever have to face a pregnancy discrimination claim by showing that you made a good-faith effort to comply with the law.

Create procedures in advance for how you will respond to and investigate complaints of pregnancy discrimination. Don’t wait until you are facing a claim to know what you will do. Having the procedures in place will help ensure an orderly and lawful process and also, like having written policies, it could serve as a defense by showing that you had the intention of following the law.

Keep job descriptions updated, making sure that the essential functions of the job are up to date.

Keep detailed written records of the “interactive process” -- your discussions with a pregnant employee about reasonable accommodations. As with the procedures and policies, documentation of your efforts to provide reasonable accommodations can help show you made a good-faith effort to comply with the law.

Conduct regular training for everyone who works for your practice, which should emphasize that the practice is committed to treating pregnant employees fairly and will not tolerate any pregnancy discrimination.

Help With Pregnancy Discrimination Compliance

At Dental & Medical Counsel, we provide a full range of services for medical, dental, optometry, and veterinary practices. Additionally, our sister company HR For Health advises practices on state and federal regulatory compliance. We can work with you to create policies, procedures, training, and written documentation that will help provide protection against pregnancy discrimination claims. If you are facing a claim, we are available to represent you and provide a vigorous defense. Contact Dental & Medical Counsel by submitting a contact us form or by calling 925-999-8200 to schedule a complimentary consultation with employment law attorney Ali Oromchian.