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Fitness for Duty in Pregnant Workers: A Test of Company Policies

By August 12, 2019December 16th, 2022Legal

Prudent business leaders recognize the importance of requiring “fitness for duty” certifications as part of the hiring process, especially where a worker may need to perform lifting, bending, stair climbing and other physical duties. Many organizations also request fitness for duty certifications for a change in work status, and this is legal provided that the requirement is consistent across all workers. When workers (as well as job candidates) are pregnant, however, HR professionals face special challenges.

Marathon works with home healthcare company that dealt with this issue. In this case, the home healthcare worker’s doctor instructed her not to lift more than 25 pounds, but her job requirement included routinely lifting 25 pounds or more. The employer had only two options — to create a light-duty assignment until the worker’s doctor cleared her for return to her previous position or to give her a leave of absence.

The Pregnancy Discrimination Act

Employers must be cautious regarding duties for pregnant workers, with or without a doctor’s statement. Why? The Pregnancy Discrimination Act (PDA), which is enforced by the Equal Employment Opportunity Commission (EEOC), stipulates pregnant workers must be treated and protected the same as any other person who has a temporary disability. In other words, pregnancy is a protected disability under the EEOC.

Wise leadership will become familiar with the PDA, or work with someone who is. Protection under the PDA means pregnant workers are legally eligible for reasonable accommodations such as light duty, restriction from lifting and carrying, modified tasks, alternative assignments and other workplace alterations. However, the law also states that an employer cannot force a pregnant worker to accept light duty if she does not want to do so.

When Maternity Leave Is Complete

Another potential “Fitness for Duty” land mine appears when workers have been on maternity leave and are ready to return to work. If an employee’s leave was taken as baby-bonding leave under the protection of the federal Family and Medical Leave Act (FMLA), and such leave was not taken in connection with a serious health condition, the employer would not need — or necessarily be entitled to — a release to return to work. If all or any part of a pregnant employee’s absence was in connection with a related medical condition that rendered her ineligible to work, it may be legal to require a Fitness for Duty certification.

However, this applies only if one of two conditions are met:

  • The employer has a policy or practice of requiring Fitness for Duty certifications or tests from all employees who have been absent in connection with medical conditions.
  • The employer has a policy that requires all employees who take time off from work in connection with the birth of a child, whether FMLA protected or not and regardless of gender, to produce a fitness for duty certificate before returning to work.

One option is to allow any employee who has taken FMLA leave to bond with a newborn child to return to work at or before the conclusion of the 12-week period of leave under the Act with no Fitness for Duty certificate unless it meets the criteria above.

In essence, employers who strictly follow the guidelines for accommodation of a temporary injury or illness should be in good shape, provided they only require Fitness for Duty certifications in those instances, and not after absences related to but not resulting from the pregnancy.

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