In an article, “Lighten up: Employers reassess whether to offer pregnant employees light-duty work,” Sue Ellen Eisenberg weighed in on the importance of recognizing pregnancy as an employment concern that may require an accommodation based on disability. The article, which was published in both Michigan Lawyers Weekly and the Detroit Legal News, states in part:
Bloomfield Hills attorney Sue Ellen Eisenberg, who has represented both employers and employees, pointed out the issue is not strictly workers’ comp related.
“That is tantamount to saying that the pregnancy occurred off the job site and we only give light-duty work to an on-the-job insured,” the private practitioner said.
“What if a man and a woman who work at same place have sex in the parking lot during work hours and she becomes pregnant – are we going to say that pregnancy is an ‘injury’?” she asked. “What if there was a rape on site during work hours and the employee became pregnant?”
The distinctions do not make sense, she said. “It’s not a workers’ comp matter; it’s a matter of a temporary disability.”
And there’s more involved than just 6th Circuit case law, she noted.
Eisenberg pointed to Michigan’s Elliott-Larsen Civil Rights Act, which was amended in 2009 to clarify that pregnancy protections under state law are the same as those under federal law.
The ELCRA “adds another layer of protection” for pregnant workers, she said.
“It’s amazing to me that in 1978 Congress passed the PDA and now, 36 years later, people are still stumbling over whether there’s an adverse impact,” Eisenberg noted. “It’s my position that since the PDA, it has always been wrong to treat workers differently because they’re pregnant.”