Appendix to Part 1604 - Questions and Answers on the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
29:4.1.4.1.5.0.21.12.5 :
Appendix to Part 1604 - Questions and Answers on the Pregnancy
Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
Introduction
On October 31, 1978, President Carter signed into law the
Pregnancy Discrimination Act (Pub. L. 95-955). The Act is an
amendment to title VII of the Civil Rights Act of 1964 which
prohibits, among other things, discrimination in employment on the
basis of sex. The Pregnancy Discrimination Act makes it
clear that “because of sex” or “on the basis of sex”, as used in
title VII, includes “because of or on the basis of pregnancy,
childbirth or related medical conditions.” Therefore, title VII
prohibits discrimination in employment against women affected by
pregnancy or related conditions.
The basic principle of the Act is that women affected by
pregnancy and related conditions must be treated the same as other
applicants and employees on the basis of their ability or inability
to work. A woman is therefore protected against such practices as
being fired, or refused a job or promotion, merely because she is
pregnant or has had an abortion. She usually cannot be forced to go
on leave as long as she can still work. If other employees who take
disability leave are entitled to get their jobs back when they are
able to work again, so are women who have been unable to work
because of pregnancy.
In the area of fringe benefits, such as disability benefits,
sick leave and health insurance, the same principle applies. A
woman unable to work for pregnancy-related reasons is entitled to
disability benefits or sick leave on the same basis as employees
unable to work for other medical reasons. Also, any health
insurance provided must cover expenses for pregnancy-related
conditions on the same basis as expenses for other medical
conditions. However, health insurance for expenses arising from
abortion is not required except where the life of the mother would
be endangered if the fetus were carried to term, or where medical
complications have arisen from an abortion.
Some questions and answers about the Pregnancy Discrimination
Act follow. Although the questions and answers often use only
the term “employer,” the Act - and these questions and answers -
apply also to unions and other entities covered by title VII.
1. Q. What is the effective date of the Pregnancy Discrimination
Act?
A. The Act became effective on October 31, 1978, except that
with respect to fringe benefit programs in effect on that date, the
Act will take effect 180 days thereafter, that is, April 29,
1979.
To the extent that title VII already required employers to treat
persons affected by pregnancy-related conditions the same as
persons affected by other medical conditions, the Act does not
change employee rights arising prior to October 31, 1978, or April
29, 1979. Most employment practices relating to pregnancy,
childbirth and related conditions - whether concerning fringe
benefits or other practices - were already controlled by title VII
prior to this Act. For example, title VII has always prohibited an
employer from firing, or refusing to hire or promote, a woman
because of pregnancy or related conditions, and from failing to
accord a woman on pregnancy-related leave the same seniority
retention and accrual accorded those on other disability
leaves.
2. Q. If an employer had a sick leave policy in effect on
October 31, 1978, by what date must the employer bring its policy
into compliance with the Act?
A. With respect to payment of benefits, an employer has until
April 29, 1979, to bring into compliance any fringe benefit or
insurance program, including a sick leave policy, which was in
effect on October 31, 1978. However, any such policy or program
created after October 31, 1978, must be in compliance when
created.
With respect to all aspects of sick leave policy other than
payment of benefits, such as the terms governing retention and
accrual of seniority, credit for vacation, and resumption of former
job on return from sick leave, equality of treatment was required
by title VII without the Amendment.
3. Q. Must an employer provide benefits for pregnancy-related
conditions to an employee whose pregnancy begins prior to April 29,
1979, and continues beyond that date?
A. As of April 29, 1979, the effective date of the Act's
requirements, an employer must provide the same benefits for
pregnancy-related conditions as it provides for other conditions,
regardless of when the pregnancy began. Thus, disability benefits
must be paid for all absences on or after April 29, 1979, resulting
from pregnancy-related temporary disabilities to the same extent as
they are paid for absences resulting from other temporary
disabilities. For example, if an employee gives birth before April
29, 1979, but is still unable to work on or after that date, she is
entitled to the same disability benefits available to other
employees. Similarily, medical insurance benefits must be paid for
pregnancy-related expenses incurred on or after April 29, 1979.
If an employer requires an employee to be employed for a
predetermined period prior to being eligible for insurance
coverage, the period prior to April 29, 1979, during which a
pregnant employee has been employed must be credited toward the
eligibility waiting period on the same basis as for any other
employee.
As to any programs instituted for the first time after October
31, 1978, coverage for pregnancy-related conditions must be
provided in the same manner as for other medical conditions.
4. Q. Would the answer to the preceding question be the same if
the employee became pregnant prior to October 31, 1978?
A. Yes.
5. Q. If, for pregnancy-related reasons, an employee is unable
to perform the functions of her job, does the employer have to
provide her an alternative job?
A. An employer is required to treat an employee temporarily
unable to perform the functions of her job because of her
pregnancy-related condition in the same manner as it treats other
temporarily disabled employees, whether by providing modified
tasks, alternative assignments, disability leaves, leaves without
pay, etc. For example, a woman's primary job function may be the
operation of a machine, and, incidental to that function, she may
carry materials to and from the machine. If other employees
temporarily unable to lift are relieved of these functions,
pregnant employees also unable to lift must be temporarily relieved
of the function.
6. Q. What procedures may an employer use to determine whether
to place on leave as unable to work a pregnant employee who claims
she is able to work or deny leave to a pregnant employee who claims
that she is disabled from work?
A. An employer may not single out pregnancy-related conditions
for special procedures for determining an employee's ability to
work. However, an employer may use any procedure used to determine
the ability of all employees to work. For example, if an employer
requires its employees to submit a doctor's statement concerning
their inability to work before granting leave or paying sick
benefits, the employer may require employees affected by
pregnancy-related conditions to submit such statement. Similarly,
if an employer allows its employees to obtain doctor's statements
from their personal physicians for absences due to other
disabilities or return dates from other disabilities, it must
accept doctor's statements from personal physicians for absences
and return dates connected with pregnancy-related disabilities.
7. Q. Can an employer have a rule which prohibits an employee
from returning to work for a predetermined length of time after
childbirth?
A. No.
8. Q. If an employee has been absent from work as a result of a
pregnancy-related condition and recovers, may her employer require
her to remain on leave until after her baby is born?
A. No. An employee must be permitted to work at all times during
pregnancy when she is able to perform her job.
9. Q. Must an employer hold open the job of an employee who is
absent on leave because she is temporarily disabled by
pregnancy-related conditions?
A. Unless the employee on leave has informed the employer that
she does not intend to return to work, her job must be held open
for her return on the same basis as jobs are held open for
employees on sick or disability leave for other reasons.
10. Q. May an employer's policy concerning the accrual and
crediting of seniority during absences for medical conditions be
different for employees affected by pregnancy-related conditions
than for other employees?
A. No. An employer's seniority policy must be the same for
employees absent for pregnancy-related reasons as for those absent
for other medical reasons.
11. Q. For purposes of calculating such matters as vacations and
pay increases, may an employer credit time spent on leave for
pregnancy-related reasons differently than time spent on leave for
other reasons?
A. No. An employer's policy with respect to crediting time for
the purpose of calculating such matters as vacations and pay
increases cannot treat employees on leave for pregnancy-related
reasons less favorably than employees on leave for other reasons.
For example, if employees on leave for medical reasons are credited
with the time spent on leave when computing entitlement to vacation
or pay raises, an employee on leave for pregnancy-related
disability is entitled to the same kind of time credit.
12. Q. Must an employer hire a woman who is medically unable,
because of a pregnancy-related condition, to perform a necessary
function of a job?
A. An employer cannot refuse to hire a women because of her
pregnancy-related condition so long as she is able to perform the
major functions necessary to the job. Nor can an employer refuse to
hire her because of its preferences against pregnant workers or the
preferences of co-workers, clients, or customers.
13. Q. May an employer limit disability benefits for
pregnancy-related conditions to married employees?
A. No.
14. Q. If an employer has an all female workforce or job
classification, must benefits be provided for pregnancy-related
conditions?
A. Yes. If benefits are provided for other conditions, they must
also be provided for pregnancy-related conditions.
15. Q. For what length of time must an employer who provides
income maintenance benefits for temporary disabilities provide such
benefits for pregnancy-related disabilities?
A. Benefits should be provided for as long as the employee is
unable to work for medical reasons unless some other limitation is
set for all other temporary disabilities, in which case
pregnancy-related disabilities should be treated the same as other
temporary disabilities.
16. Q. Must an employer who provides benefits for long-term or
permanent disabilities provide such benefits for pregnancy-related
conditions?
A. Yes. Benefits for long-term or permanent disabilities
resulting from pregnancy-related conditions must be provided to the
same extent that such benefits are provided for other conditions
which result in long-term or permanent disability.
17. Q. If an employer provides benefits to employees on leave,
such as installment purchase disability insurance, payment of
premiums for health, life or other insurance, continued payments
into pension, saving or profit sharing plans, must the same
benefits be provided for those on leave for pregnancy-related
conditions?
A. Yes, the employer must provide the same benefits for those on
leave for pregnancy-related conditions as for those on leave for
other reasons.
18. Q. Can an employee who is absent due to a pregnancy-related
disability be required to exhaust vacation benefits before
receiving sick leave pay or disability benefits?
A. No. If employees who are absent because of other disabling
causes receive sick leave pay or disability benefits without any
requirement that they first exhaust vacation benefits, the employer
cannot impose this requirement on an employee absent for a
pregnancy-related cause.
18 (A). Q. Must an employer grant leave to a female employee for
chidcare purposes after she is medically able to return to work
following leave necessitated by pregnancy, childbirth or related
medical conditions?
A. While leave for childcare purposes is not covered by the
Pregnancy Discrimination Act, ordinary title VII principles would
require that leave for childcare purposes be granted on the same
basis as leave which is granted to employees for other non-medical
reasons. For example, if an employer allows its employees to take
leave without pay or accrued annual leave for travel or education
which is not job related, the same type of leave must be granted to
those who wish to remain on leave for infant care, even though they
are medically able to return to work.
19. Q. If State law requires an employer to provide disability
insurance for a specified period before and after childbirth, does
compliance with the State law fulfill the employer's obligation
under the Pregnancy Discrimination Act?
A. Not necessarily. It is an employer's obligation to treat
employees temporarily disabled by pregnancy in the same manner as
employees affected by other temporary disabilities. Therefore, any
restrictions imposed by State law on benefits for pregnancy-related
disabilities, but not for other disabilities, do not excuse the
employer from treating the individuals in both groups of employees
the same. If, for example, a State law requires an employer to pay
a maximum of 26 weeks benefits for disabilities other than
pregnancy-related ones but only six weeks for pregnancy-related
disabilities, the employer must provide benefits for the additional
weeks to an employee disabled by pregnancy-related conditions, up
to the maximum provided other disabled employees.
20. Q. If a State or local government provides its own employees
income maintenance benefits for disabilities, may it provide
different benefits for disabilities arising from pregnancy-related
conditions than for disabilities arising from other conditions?
A. No. State and local governments, as employers, are subject to
the Pregnancy Discrimination Act in the same way as private
employers and must bring their employment practices and programs
into compliance with the Act, including disability and health
insurance programs.
21. Q. Must an employer provide health insurance coverage for
the medical expenses of pregnancy-related conditions of the spouses
of male employees? Of the dependents of all employees?
A. Where an employer provides no coverage for dependents, the
employer is not required to institute such coverage. However, if an
employer's insurance program covers the medical expenses of spouses
of female employees, then it must equally cover the medical
expenses of spouses of male employees, including those arising from
pregnancy-related conditions.
But the insurance does not have to cover the pregnancy-related
conditions of other dependents as long as it excludes the
pregnancy-related conditions of the dependents of male and female
employees equally.
22. Q. Must an employer provide the same level of health
insurance coverage for the pregnancy-related medical conditions of
the spouses of male employees as it provides for its female
employees?
A. No. It is not necessary to provide the same level of coverage
for the pregnancy-related medical conditions of spouses of male
employees as for female employees. However, where the employer
provides coverage for the medical conditions of the spouses of its
employees, then the level of coverage for pregnancy-related medical
conditions of the spouses of male employees must be the same as the
level of coverage for all other medical conditions of the spouses
of female employees. For example, if the employer covers employees
for 100 percent of reasonable and customary expenses sustained for
a medical condition, but only covers dependent spouses for 50
percent of reasonable and customary expenses for their medical
conditions, the pregnancy-related expenses of the male employee's
spouse must be covered at the 50 percent level.
23. Q. May an employer offer optional dependent coverage which
excludes pregnancy-related medical conditions or offers less
coverage for pregnancy-related medical conditions where the total
premium for the optional coverage is paid by the employee?
A. No. Pregnancy-related medical conditions must be treated the
same as other medical conditions under any health or disability
insurance or sick leave plan available in connection with
employment, regardless of who pays the premiums.
24. Q. Where an employer provides its employees a choice among
several health insurance plans, must coverage for pregnancy-related
conditions be offered in all of the plans?
A. Yes. Each of the plans must cover pregnancy-related
conditions. For example, an employee with a single coverage policy
cannot be forced to purchase a more expensive family coverage
policy in order to receive coverage for her own pregnancy-related
condition.
25. Q. On what basis should an employee be reimbursed for
medical expenses arising from pregnancy, childbirth or related
conditions?
A. Pregnancy-related expenses should be reimbursed in the same
manner as are expenses incurred for other medical conditions.
Therefore, whether a plan reimburses the employees on a fixed
basis, or a percentage of reasonable and customary charge basis,
the same basis should be used for reimbursement of expenses
incurred for pregnancy-related conditions. Furthermore, if medical
costs for pregnancy-related conditions increase, reevaluation of
the reimbursement level should be conducted in the same manner as
are cost reevaluations of increases for other medical
conditions.
Coverage provided by a health insurance program for other
conditions must be provided for pregnancy-related conditions. For
example, if a plan provides major medical coverage,
pregnancy-related conditions must be so covered. Similarily, if a
plan covers the cost of a private room for other conditions, the
plan must cover the cost of a private room for pregnancy-related
conditions. Finally, where a health insurance plan covers office
visits to physicians, pre-natal and post-natal visits must be
included in such coverage.
26. Q. May an employer limit payment of costs for
pregnancy-related medical conditions to a specified dollar amount
set forth in an insurance policy, collective bargaining agreement
or other statement of benefits to which an employee is
entitled?
A. The amounts payable for the costs incurred for
pregnancy-related conditions can be limited only to the same extent
as are costs for other conditions. Maximum recoverable dollar
amounts may be specified for pregnancy-related conditions if such
amounts are similarly specified for other conditions, and so long
as the specified amounts in all instances cover the same proportion
of actual costs. If, in addition to the scheduled amount for other
procedures, additional costs are paid for, either directly or
indirectly, by the employer, such additional payments must also be
paid for pregnancy-related procedures.
27. Q. May an employer impose a different deductible for payment
of costs for pregnancy-related medical conditions than for costs of
other medical conditions?
A. No. Neither an additional deductible, an increase in the
usual deductible, nor a larger deductible can be imposed for
coverage for pregnancy-related medical costs, whether as a
condition for inclusion of pregnancy-related costs in the policy or
for payment of the costs when incurred. Thus, if pregnancy-related
costs are the first incurred under the policy, the employee is
required to pay only the same deductible as would otherwise be
required had other medical costs been the first incurred. Once this
deductible has been paid, no additional deductible can be required
for other medical procedures. If the usual deductible has already
been paid for other medical procedures, no additional deductible
can be required when pregnancy-related costs are later
incurred.
28. Q. If a health insurance plan excludes the payment of
benefits for any conditions existing at the time the insured's
coverage becomes effective (pre-existing condition clause), can
benefits be denied for medical costs arising from a pregnancy
existing at the time the coverage became effective?
A. Yes. However, such benefits cannot be denied unless the
pre-existing condition clause also excludes benefits for other
pre-existing conditions in the same way.
29. Q. If an employer's insurance plan provides benefits after
the insured's employment has ended (i.e. extended benefits) for
costs connected with pregnancy and delivery where conception
occurred while the insured was working for the employer, but not
for the costs of any other medical condition which began prior to
termination of employment, may an employer (a) continue to pay
these extended benefits for pregnancy-related medical conditions
but not for other medical conditions, or (b) terminate these
benefits for pregnancy-related conditions?
A. Where a health insurance plan currently provides extended
benefits for other medical conditions on a less favorable basis
than for pregnancy-related medical conditions, extended benefits
must be provided for other medical conditions on the same basis as
for pregnancy-related medical conditions. Therefore, an employer
can neither continue to provide less benefits for other medical
conditions nor reduce benefits currently paid for pregnancy-related
medical conditions.
30. Q. Where an employer's health insurance plan currently
requires total disability as a prerequisite for payment of extended
benefits for other medical conditions but not for pregnancy-related
costs, may the employer now require total disability for payment of
benefits for pregnancy-related medical conditions as well?
A. Since extended benefits cannot be reduced in order to come
into compliance with the Act, a more stringent prerequisite for
payment of extended benefits for pregnancy-related medical
conditions, such as a requirement for total disability, cannot be
imposed. Thus, in this instance, in order to comply with the Act,
the employer must treat other medical conditions as
pregnancy-related conditions are treated.
31. Q. Can the added cost of bringing benefit plans into
compliance with the Act be apportioned between the employer and
employee?
A. The added cost, if any, can be apportioned between the
employer and employee in the same proportion that the cost of the
fringe benefit plan was apportioned on October 31, 1978, if that
apportionment was nondiscriminatory. If the costs were not
apportioned on October 31, 1978, they may not be apportioned in
order to come into compliance with the Act. However, in no
circumstance may male or female employees be required to pay
unequal apportionments on the basis of sex or pregnancy.
32. Q. In order to come into compliance with the Act, may an
employer reduce benefits or compensation?
A. In order to come into compliance with the Act, benefits or
compensation which an employer was paying on October 31, 1978
cannot be reduced before October 31, 1979 or before the expiration
of a collective bargaining agreement in effect on October 31, 1978,
whichever is later.
Where an employer has not been in compliance with the Act by the
times specified in the Act, and attempts to reduce benefits, or
compensation, the employer may be required to remedy its practices
in accord with ordinary title VII remedial principles.
33. Q. Can an employer self-insure benefits for
pregnancy-related conditions if it does not self-insure benefits
for other medical conditions?
A. Yes, so long as the benefits are the same. In measuring
whether benefits are the same, factors other than the dollar
coverage paid should be considered. Such factors include the range
of choice of physicians and hospitals, and the processing and
promptness of payment of claims.
34. Q. Can an employer discharge, refuse to hire or otherwise
discriminate against a woman because she has had an abortion?
A. No. An employer cannot discriminate in its employment
practices against a woman who has had an abortion.
35. Q. Is an employer required to provide fringe benefits for
abortions if fringe benefits are provided for other medical
conditions?
A. All fringe benefits other than health insurance, such as sick
leave, which are provided for other medical conditions, must be
provided for abortions. Health insurance, however, need be provided
for abortions only where the life of the woman would be endangered
if the fetus were carried to term or where medical complications
arise from an abortion.
36. Q. If complications arise during the course of an abortion,
as for instance excessive hemorrhaging, must an employer's health
insurance plan cover the additional cost due to the complications
of the abortion?
A. Yes. The plan is required to pay those additional costs
attributable to the complications of the abortion. However, the
employer is not required to pay for the abortion itself, except
where the life of the mother would be endangered if the fetus were
carried to term.
37. Q. May an employer elect to provide insurance coverage for
abortions?
A. Yes. The Act specifically provides that an employer is not
precluded from providing benefits for abortions whether directly or
through a collective bargaining agreement, but if an employer
decides to cover the costs of abortion, the employer must do so in
the same manner and to the same degree as it covers other medical
conditions.
[44 FR 23805, Apr. 20, 1979]