Pregnant Worker Fired After Work Restriction Imposed by Doctor
January 1, 2000
The Eleventh Circuit Court of Appeals (Florida, Georgia and Alabama) held in
Spivey v. Beverly Enterprises (11th Cir., Nov. 30, 1999) that an employer is not
required to offer modified duty to pregnant employees even though the employer
offers modified duty to employees injured on the job. The court held that
pregnant employees must be treated the same as every other employee with a
nonoccupational injury. Thus, an employer need not accommodate pregnant
employees unless the employer generally accommodates other employees suffering
nonoccupational injuries.
In Spivey, the employee was a certified nurse's assistant at a rehabilitation
center. Her primary responsibilities included lifting and repositioning
patients, assisting with patient baths and meals, and providing general patient
care. Soon after becoming pregnant, the employee became concerned that lifting
heavy patients might cause harm to her unborn child. She requested assistance in
lifting heavy patients as an accommodation to her pregnancy. In response, the
employer told her to get a doctor's verification of the work restriction.
Consequently, the employee obtained a 25-pound lifting restriction from her
doctor, but was then told that she would not be given an accommodation because
her disability (pregnancy) was not the result of a work-related injury.
According to the employer's policy, the employee would be excused from heavy
lifting only if the restriction were the result of a work-related injury. As a
result, the employer told the employee she would be terminated unless the work
restriction were removed by the doctor. The doctor would not remove the work
restriction, and as a result, the employee was terminated since she was not able
to perform the heavy lifting her job required.
The employee filed suit claiming violation of the Pregnancy Discrimination
Act of 1978 which declares that for employment-related purposes, pregnant women
must be treated the same as other persons in the work place. The Eleventh
Circuit held that, since the employer did not generally give any kind of
accommodation to other employees who were injured off the job, the employer was
not required to give any kind of accommodation to the pregnant employee. The
court reasoned that this employer's policy did not treat pregnant employees
differently from other persons because all employees "injured" off the
job were treated the same.
Simply categorizing pregnant employees as "injured," the court
avoids discussion of employees who were disabled for a reason other than injury.
The court also avoided an evaluation of whether heavy lifting was an essential
function of employee's job, but the analysis implies that heavy lifting was so
integral to the employee's duties to justify a termination if the employee were
unable to do so.
The result would have been different if this employer had generally granted
accommodations for nonoccupational injuries. The foci of the Eleventh Circuit's
analysis are consistency and uniformity of treatment between classes of injured
workers. The court evaluated the consistency of treatment of workers injured off
the job and concluded that pregnant employees were treated no differently from
everyone else in this group. However, the court's analysis leads to the
conclusion that employers who generally accommodate the disabilities of workers
injured off the job are required to accommodate work restrictions imposed
because of pregnancy.
The Eleventh Circuit's ruling is consistent with the Fifth Circuit's position
on the same question in Urbano v. Continental Airlines (5th Cir.
1998)(Louisiana, Mississippi and Texas). However, the Sixth Circuit in
Ensley-Gaines v. Runyon (6th Cir. 1996) ruled differently (Kentucky, Michigan,
Ohio and Tennessee). Therefore, an employer's assessment of this question should
include consideration of the rulings in the part of the country where the
employer's operation is located.
For more information please call Mark G. Alexander at 1-888-688-8500.
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