A July 8, 2015 New York Times article discusses the important role that doctors’ notes can play in helping women stay healthy and employed during their pregnancies.
Pregnancy often gives rise to conditions – like back pain, morning sickness, or gestational diabetes – that require accommodations at work. And many doctors advise modest workplace changes to prevent negative outcomes during pregnancy, such as avoiding exposure to toxic fumes, sitting on a stool, taking frequent bathroom breaks, carrying a water bottle, or obtaining help with heavy lifting.
Authors of a commentary published in Obstetrics and Gynecology caution that doctors should ensure that their notes are medically indicated and detailed, so that their patients are not penalized at work. The lead author of the commentary, Dr. Rebecca Jackson, is chief of Obstetrics and Gynecology at San Francisco General Hospital and the medical champion for a medical legal partnership with Legal Aid Society-Employment Law Center and the SF Department of Public Health that addresses exactly these issues – by educating health care providers about their patients’ workplace rights, providing template doctor’s notes, and offering free on-site legal advice to pregnant patients and their families.
The New York Times article notes that when doctor’s notes are vague, “some employers seize on them to suggest a woman can’t perform her job and so must be put on unpaid leave midpregnancy.” But even if an employer believes a doctor’s note is incomplete or unclear, it is the employer’s duty to request more information from the employee, if necessary with additional input from the doctor. The employer also has an obligation to explore ways to keep a pregnant worker on the job through modified duties or a transfer to a different position, rather than placing her on forced leave. Unfortunately, pregnant women still are sometimes forced from their jobs when they want to and need to continue working to support their families. The piece highlights Legal Aid’s observation of the devastating consequences when a woman is pushed out of her job early on in her pregnancy: “Then having exhausted all of her maternity leave, before her baby is even born, she is threatened with job loss or is fired.”
The article tells the story of our client, Maria Yesenia Arroyo Guerrero, who worked as a certified nursing assistant for 10 years at a nursing home in Hayward. Ms. Arroyo recently filed a lawsuit against her former employer alleging violations of the California Fair Employment and Housing Act.
As she alleges in her complaint, when she became pregnant with her second child, Ms. Arroyo began to experience lower back and hip pain, and her doctor recommended that she avoid heavy lifting at work, and provided a note that was detailed and medically indicated. But when she asked her employer for this accommodation, her boss refused and placed her on unpaid leave for the remaining 7 months of her pregnancy. Ms. Arroyo Guerrero pleaded to be allowed to keep working, citing the many duties she could still perform, but the company denied her pleas. Then, claiming that she had taken too much leave, the company told her that she would be terminated if she did not return to work one day after she was scheduled to deliver her baby by c-section. Ms. Arroyo Guerrero asked for an extension of leave until she recovered from childbirth. But the company fired her the day after her baby was born.
As in the recent case of Young v. UPS, employers often make accommodations for workers with other kinds of disabilities or those injured on the job, but fail to consider doing so for pregnant workers. While the Court’s decision in that case was a victory for Ms. Young, it still leaves many pregnant women across the country having to jump through legal hoops to obtain the accommodations they need. Under Young, pregnant women have to show that a large percentage of non-pregnant workers are granted accommodations, which can be difficult to investigate, especially for new employees, those in smaller workplaces, or those whose employers lack official policies. Pregnant workers should have an affirmative right to the accommodations they need to stay healthy.
That’s why Congress should pass the Pregnant Workers Fairness Act, a pending federal bill that would require employers to provide reasonable accommodations to pregnant workers. The bill was recently reintroduced with bi-partisan support. Thankfully, California – along with a growing number of other states and localities – already has a law on the books that clearly requires employers to provide accommodations to pregnant workers. Nonetheless, some employers still violate the law, which is why education and enforcement of cases like Ms. Arroyo’s are so critical.
Too many women are forced out of their jobs at a time when they most need their income, simply because they are following their doctor’s orders and seeking to maintain a healthy pregnancy. As Ms. Arroyo told the Times, “This shouldn’t happen to any pregnant woman.”