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Aug 01, 2014

Does the North Dakota baby boom affect you?

By: Paul Ebeltoft

Late last year, reported a link between fertility and economic well-being. Here in North Dakota, where an oil boom has helped deliver the nation’s lowest unemployment rate, our fertility rate rose 4.1 percentage points between 2010 and 2012, the largest increase in the nation. The number of babies born at Dickinson's St. Joseph's Hospital has increased even more – 14 percent year-over-year for just half of the Bloomberg study period. Overall, the number of birth in North Dakota, at last reporting, exceeded a decades-old baby benchmark.

Observers tell us that the number of babies delivered in our state will be record-setting when recent statistics are all gathered, with the highest numbers coming from the west.

For HR professionals these numbers add up to a greater number of pregnant workers and a greater potential for workplace problems. It is increasingly important for you to have a firm grasp on the Pregnancy Discrimination Act (PDA), related acts like the Americans with Disabilities Act (ADA) and enforcement guidance related to the PDA and issued by the Equal Employment Opportunity Commission (EEOC) just three weeks ago.

The Pregnancy Discrimination Act

The PDA has been around since 1978. Its policy purpose was to make sure that pregnant women able to work were permitted to work on the same conditions as other employees. When medical conditions dictate otherwise, pregnant women must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.

The Americans with Disabilities Act

This PDA sounds a bit like the ADA, you might be thinking. You are right in thinking that, but the EEOC had been firm in its stance that pregnancy itself is not a disability. However, when Congress significantly broadened the scope of the term “disability” in the ADA Amendments Act of 2008, the rules changed, making it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have a disability for which they may be entitled to a reasonable accommodation. Reading ADA and the PDA together as a seamless construct, the EEOC is expecting a lot more than you might be used to.

What does the EEOC enforcement guidance ask of employers?

The guidance announcement is quite long. You can read the entirety of it here:

The guidance clarifies and extends what falls within the PDA’s protections. The short (and not all-inclusive) story: employers cannot discriminate even before pregnancy occurs, such as on the basis of potential pregnancy, a woman’s intention to become pregnant, or the increased reproductive possibilities due to fertility treatments. The employer cannot discriminate after the pregnancy ends because the pregnancy has occurred.

There has been confusion about the application of the PDA to prescription drugs used only by women, such as contraceptives. The guidance tells employers it is illegal to exclude prescription contraceptives from its comprehensive insurance plan. Once the baby arrives, the breastfeeding employee must be given the same freedom to address lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. Pregnant women must be afforded light duty and cannot be denied light duty available to other employees who are similar in their ability or inability to work.

Best Practices

The best practices section of the enforcement guidelines is quite long. While telling us that “best practices” are not the same as “legally required practices” the EEOC also tells us that they provide the best chance to avoid a PDA discrimination claim. Here is a very partial list of what the EEOC suggests that you do:
• Develop and enforce a strong written policy prohibiting discrimination based on pregnancy, childbirth and related medical conditions.
• Ensure that the policy provides multiple avenues of complaint.
• Train managers and employees regularly about their rights and responsibilities.
• Develop specific, job related qualification standards for each of your job positions that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and for discrimination on the basis of pregnancy, childbirth, or related medical conditions.
• Disclose information about fetal hazards to applicants and employees and accommodate resulting requests for reassignment if feasible.
• While leave related to pregnancy, childbirth, or related conditions can be limited to women affected by those conditions, parental leave must be provided to similarly situated men and women on the same terms.
• Ensure that employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace.
• Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.

In summary

It is a new day for the PDA, which has gone decades without this kind of attention by the EEOC. Make sure that you give it yours.

Where are we anyway?

Long-time readers of the column know that Ebeltoft . Sickler . Lawyers is at home and very comfortable in its beautiful (if we say so ourselves) new building at 2272 Eighth Street West, Dickinson, ND 58601. We are all excited about our prairie style building with wide eaves, strong horizontal lines and open air patio spaces. You will like its sleek, modern interior, too. Please visit us. I would love to show you around.

The address is a little deceiving and it is not yet on Google Maps. You can find us at the corner of Fairway Street and 23rd Avenue West, Dickinson, across the street from the West River Community Center and kitty-corner to the new St. Joseph’s hospital. The beautiful landscaping will not be done until the weather makes a decided turn for the better.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at We promise to take your comments and ideas to heart.

(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the August, 2014 Southwest Area Human Resource Association newsletter.