My interest is piqued by laws with unusual twists, like the Emeryville, California ordinance that permits the use of sick leave to care for a family member’s service animal (about which I blogged previously). Here’s another one – Pittsburgh recently passed a pregnancy accommodations ordinance that extends protections to the partners of pregnant employees!
The ordinance specifically adds “pregnancy, childbirth, or related medical conditions and events” to the list of characteristics protected from discrimination under state law. It goes on to define pregnancy as “”The state of being pregnant, including the partner of a pregnant person, seeking to become pregnant, and related symptoms of pregnancy.” (Emphasis added). Similarly, the definition of “related medical conditions and events” includes “being the partner of a person affected by” the outlined conditions and events. In the preamble to the ordinance (but not the actual law itself), partners “are persons of any gender with whom a pregnant person or a person with a related medical condition has relationship [sic] of mutual emotion and/or physical support.”
As a recovering English major, I am concerned by including a “partner” within the definition of being pregnant. That’s not technically correct. (My husband certainly did not experience the great inconvenience of carrying another person inside his body!) But as a management-side employment attorney, I am more concerned about the ramifications of this “groundbreaking” legislation (as the committee apparently termed it).
The Pittsburgh Commission on Human Relations issued a Guidance on pregnancy discrimination under the law that provides some specific illumination on how partners are protected. The Guidance reiterates the definition of “partner” above, and further clarifies that it “does not require a marital or domestic relationship.” Wow, that’s broad. So it could be any friend, really. And how can an employer verify that the employee is truly a “partner”? That’s pretty easy for someone who is married, or even in a domestic partnership. But a friend? Who lives in another city, perhaps?
The Guidance then goes on to discuss forms of prohibited discrimination, some of which reference protection for partners. For example, under “Disparate Treatment of Pregnant Employees,” the Guidance makes clear that employees cannot be treated less favorably than others because they are the partner of a pregnant individual (or one who is “perceived to be pregnant”?!!! What?!!). The specific example provided is “Denying a promotion to the partner of a pregnant individual because the employer believes the partner will be missing work frequently to attend pregnancy-related appointments and/or will be less dedicated to their work after becoming a parent.” (I note that the latter example is really a case of parental/familial status discrimination, since the partner will continue to be parent long past the time of pregnancy and childbirth.)
The Guidance also discusses partners in the context of “Failure to Provide Reasonable Accommodations to an Employee in regard to Pregnancy, Childbirth, or a Related Medical Condition or Event.” Here, the Guidance states that “When an employer knows, or reasonably should know … that an employee is the partner of a person who is pregnant or affected by a related medical condition, the Code requires the employer to provide the employee with reasonable accommodations that will allow them to perform the essential duties of their job.” The Guidance then imposes on the employer the obligation to initiate the reasonable accommodations dialogue with an employee when it learns that the employee is the partner of a pregnant individual who is having a work issue related to the pregnancy – even if the employee has not requested an accommodation!
The Guidance goes on to list possible accommodations for partners, such as:
- Allowing an employee who is the partner of a pregnant person time off to attend … medical appointments and procedures with the pregnant person, and to attend the birth;
- Leave to care for a partner who is recovering from childbirth;
- Allowing time off to the partner of an individual who has experienced [a miscarriage or termination of pregnancy] for the partner’s own emotional recovery.
Employers are severely limited in the type of medical documentation they can require under the law. According to the Guidance, employers may not require an employee to provide medical documentation or confirmation of their partner’s pregnancy, childbirth or related medical condition. Medical documentation is only permitted if the employee has requested time off and such documentation is required of those requesting time off for other reasons unrelated to pregnancy. In addition, while employers may request documentation confirming attendance at an appointment with a pregnant individual, the documentation may not confirm the pregnancy or childbirth, or confirm or describe the related medical condition that was the basis of the appointment.
The ordinance, as interpreted by the Guidance, goes waaaaaay beyond what is required under federal law! While the Family and Medical Leave Act provides employees with leave to care for a pregnant spouse with a pregnancy- or childbirth-related serious health condition and to care for their newborn child, as well as for their own serious health condition (which could include a mental condition associated with the partner’s loss of a pregnancy), this ordinance would permit leave to be taken for many other non-FMLA situations. And it covers partners who are not spouses. And apparently does not allow the employer to obtain medical documentation that it would otherwise be able to obtain under the FMLA.
Additionally, while the Americans with Disabilities Act prohibits discrimination against employees based on their association with disabled individuals, which could include those with pregnancy-related disabilities, it does not require employers to provide reasonable accommodations under such circumstances.
It will be interesting to see how this plays out in Pittsburgh. And given the widespread interest in enacting pregnancy accommodations laws across the U.S. (in 2019 alone, Kentucky, Maine and Oregon passed such laws), I am also curious to see whether other jurisdictions will seek to expand their laws similarly to cover partners of pregnant individuals!