The Supreme Court’s recent decision in Young v. United Parcel Service highlighted several of the challenges pregnant women face in the workforce. Young v. U.P.S., 575 U.S. ___ (2015). Peggy Young submitted a doctor’s note to her employer while she was pregnant. In that note, her doctor recommended she not lift more than 20 pounds, even though lifting items weighing up to 70 pounds was considered an essential job function. Young asked for an accommodation to work light duty for UPS throughout the rest of her pregnancy. UPS denied the accommodation and refused to allow her return to work.
How Doctor’s Notes Can Hurt Working Pregnant Women
The fact scenario of the Young case is not unique. A recent commentary in Obstetrics and Gynecology and an article in last week’s New York Times both highlight the inadvertent problems that can arise out of a poorly worded doctor’s note for a pregnant woman. This isn’t a criticism of doctors but rather a call to make sure medical providers, and patients, understand the consequences of the recommendations made in notes submitted to employers. Here’s how this usually plays out:
At one of her appointments, a pregnant female employee talks to her doctor about the type of work she performs and the doctor says, “You should be careful about doing that type of work or maybe, you shouldn’t do that work at all.” The doctor offers to write a note about limiting/prohibiting certain types of work (bending, lifting, stooping, etc.). The patient takes the note to her employer who then says, “You have to be able to perform this work if you want to keep your job. If you can’t do it, you can go on unpaid leave.” The employee must then use the unpaid leave she was saving (up to 12 weeks under the Family Medical Leave Act if eligible) during her pregnancy which leaves her with significantly less leave after she gives birth. If she wants to stay home with the baby for longer than her leave allows, she faces termination because her employer does not have to hold her job open after she exhausts her leave.
This is the last situation any expecting mother wants to be in and it may perhaps have been avoided altogether with a more carefully worded note.
4 Ways to Make a Medical Note More Discrimination-Proof
Below are examples of helpful information exchanges between medical providers and patients that can aid providers in drafting notes tailored to specific patient needs while potentially avoiding unnecessary unpaid leave:
- Explain the essential functions of your job to your medical provider;
- Explain other types of work you are qualified to perform that may not be included in your essential job functions and talk to your doctor about whether you would be able to do that work;
- Have your doctor list all of the types of work you ARE able to perform in the note you are going to provide to your employer – both essential functions and other work you can perform. For example: Patient can drive forklift, process inventory, field customer inquiries, put labels on boxes, and train new employees;
- Have your doctor provide specific tasks you are restricted from performing but try to avoid vague restrictions. For instance, if possible, a note should say “Patient can’t lift more than 10 pounds more than 3 times per day” instead of “No lifting.”
Of course, all of these are just examples and a doctor’s note should reflect a patient’s specific medical needs. However, a more expansive information exchange between provider and patient will likely go a long way in helping providers draft notes that will make it more difficult for employers to force pregnant women out of their jobs for the remainder of their pregnancy. For instance, employers won’t be able to rely on the ambiguity in a note to tell an employee that there is no work available within her restrictions if she has provided a detailed explanation of all the other work she can do and those tasks are indeed available. It’s also possible that an employer (not all of whom are bad actors) will be able to look at a more detailed note and identify areas in which an individual can still be of service to the company in a slightly different capacity during the remainder of the pregnancy.
Pregnancy Discrimination Can Be Difficult to Discern
This article is not meant to suggest that medical providers bear the responsibility for employers who engage in discriminatory behavior or that more detailed notes will eliminate these types of concerns for pregnant women. It’s not clear, for instance, that a more detailed note would have changed the outcome for Peggy Young. Indeed, even if you provide a detailed doctor’s note, your employer may still require you to take an unpaid leave. If that happens, it’s worth consulting an attorney to discuss whether or not there has been unlawful discrimination on the part of your employer. After the Young case, which Peggy Young ultimately won before the United States Supreme Court, a woman may show that she was subject to disparate treatment from her employer if she can prove that the employer’s actions and decisions were based on her status as a pregnant person. In other words, if an employer agrees to allow anyone who is not pregnant to perform light duty and only requires pregnant women to take unpaid leave in light of restrictions, there might be sufficient evidence to prove discrimination.
If you believe you have been a victim of discrimination and would like to consult with one of our attorneys, call 414-271-8650.