Pregnant Worker Fired After Work Restriction Imposed by Doctor
 
January 1, 2000
 
Mark G. Alexander- Jacksonville

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.