By Joseph S. Murray IV

Increasingly, employers are considering offering paid parental leave benefits due to pressures from a changing workforce (Millennials, state and local governments, and even, surprisingly, the current Administration). One policy option is to provide paid maternity leave for new mothers to recuperate from childbirth. Numerous discussions on the legality of maternity-only leave policies have led to the consensus that maternity leave linked to the mother’s recovery does not violate Title VII. See, e.g., EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 25, 2015). But do such policies raise the possibility of paid leave as a reasonable accommodation for a qualified individual with a disability under the Americans with Disabilities Act, as amended (ADA)?

By linking maternity leave to the mother’s recovery, the leave is based on a physical, and potentially mental and emotional, impairment. 29 CFR 1630.2(h). Such impairment affects both major life activities (such as caring for oneself, performing manual tasks, sleeping, walking, standing, sitting, reaching, lifting, bending, and working) and bodily functions (such as digestive, genitourinary, bowel, bladder, musculoskeletal, and reproductive functions). Further, the impairment likely substantially limits these major life activities and bodily functions in some, if not all, women.[i] 42 U.S.C. § 12102. Therefore, paid maternity leave based on the recovery of the mother is, in at least some cases, linked to a covered disability under the ADA.

If paid maternity leave is linked to an ADA disability, then employers may not be able to deny similar paid leave as a reasonable accommodation to other qualified individuals with a disability. While the ADA does not mandate that employers provide paid leave as a reasonable accommodation, it does require employers to treat similarly situated employees the same. Cf. 29 CFR 1630.4(v); see also Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016). There is nothing in the ADA that allows employers to favor one type of disability over another by providing better accommodations or benefits. EEOC Enforcement Guidance: Workers’ Compensation and the ADA, f. 28 & 29 (July 6, 2000) (stating that a policy that favors one class of disabled employee over another may establish an adverse impact claim that requires the employer to “show that the policy is job-related and consistent with business necessity”).

The EEOC has in fact taken this position in the context of policies limiting light-duty positions to employees with occupational injuries. In the Workers’ Compensation and the ADA guidance, the EEOC states that if an employer has light-duty positions reserved for employees with occupational injuries, then the employer must consider a vacant light-duty position as a reasonable accommodation for any qualified individual with a disability, regardless of the cause of the disability. Id. at Q. 28.[ii] Part of the basis for the EEOC’s position is that the ADA requires employers to treat employees with disabilities the same as similarly situated employees and to modify policies as a reasonable accommodation.

Paid maternity leave policies and policies limiting light-duty positions to employees with occupational injuries have several similarities. Both policies are applicable to employees who have a medical condition or injury that may or may not qualify as a disability under the ADA. Both policies set up a class of employees with or without disabilities that receives better benefits than similarly situated employees with disabilities. Paid maternity leave policies generally limit paid leave to 6 to 10 weeks, depending on the medical requirements of the mother; light-duty policies generally limit the time an employee can be in a light-duty position to a specified, short-term period (e.g., the Supervalu policy in endnote II limited light-duty positions to 90 days). Given these similarities, I would expect that the EEOC will examine the legality of limiting paid leave only to new mothers and that employees asserting ADA claims alleging adverse impact discrimination will have a good shot at defeating motions to dismiss.

Employer-side attorneys need to consider this issue when advising clients on paid maternity leave policies.[iii] When advising clients, there are several points to address. First, is this is an issue the employer wants to fight about? At least in the early stages, employees and the EEOC will have to make a novel argument that paid leave should be available as a reasonable accommodation. Second, if a qualified employee with a disability makes a request for paid leave and the employer is willing to consider the request, then paid leave needs to be a reasonable accommodation. Paid leave may not be an appropriate reasonable accommodation, or it may be only one of several options that the employer can implement. Further, the employer still has access to the undue hardship defense in denying paid leave.[iv] Third, and relatedly, the employer does not need to advertise that paid maternity leave will be considered as a reasonable accommodation; the employer needs only to consider it as an option as part of the interactive process (and if denied, document that it was considered along with the reason for denial). Finally, well-crafted paid maternity leave policies can help limit the pool of employees who could possibly qualify for paid leave as a reasonable accommodation. For instance, requiring new mothers to be on leave protected by the Family Medical Leave Act in order to receive paid maternity leave would allow employers to deny similar leave to qualified employees with disabilities when they do not qualify for FMLA leave or have previously exhausted their FMLA leave.

[i] The ADA regulations state that the effects of an impairment lasting fewer than six months can be substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ix).

[ii] The EEOC has had some success in enforcing this position. Michael Bologna, Supervalu Settles ADA Suit Alleging Inflexible Leave Policy (Jan. 10, 2011) (“[The EEOC] said Jewel-Osco violated the ADA by prohibiting disabled employees from participating in the company’s 90-day light duty program if they were not injured on the job.”).

[iii] I have no more advice for my employee-side peers; giving you ideas on how to sue employers should be enough.

[iv] Good luck with that argument.