Pregnant Employees: Accommodation, Leave and Doctors’ Notes

Lawyer Richard Johnson, Contributor.Preg leave1

In a previous blog post we offered an overview of British Columbia’s human rights regime, and how an employee’s childcare responsibilities fit within that framework. This week, we revisit the topic of an employee’s human rights protections, this time in the context of pregnancy leave. For a refresher on the notions of protected grounds, an employer’s duty to accommodate, and undue hardship, check out our childcare post here.

The concept of “pregnancy leave” received recent media attention in the US when Peggy Young sued UPS for placing her on unpaid leave after her doctor recommended her job duties be restricted during her pregnancy. In March of this year, the U.S. Supreme Court ruled that Ms. Young’s discrimination case against her former employer for their failure to accommodate her should be heard by the relevant trial court. A few months after that ruling (and just recently), the NY Times published a piece in its “Well” section on the topic of how “unspecific or poorly timed” doctors’ notes written for pregnant employees can “backfire”, citing Ms. Young’s case as an example.

Given the high profile nature of Ms. Young’s workplace battle, we thought it timely to review certain rights of pregnant workers in Canada, and BC in particular. In the following post, we discuss an employee’s rights to pregnancy leave and workplace accommodation, and the role of doctors’ notes in this context. Preg leave2

In British Columbia, pregnant employees enjoy rights and protections under both human rights and employment standards legislation:

  • Under section 13 of the BC Human Rights Code, an employer may not discriminate against an employee on the basis that she is pregnant (under the protected ground of “sex”), unless there is a bona fide occupational requirement which warrants the discrimination, or unless accommodating the employee would create undue hardship for the employer.
  • Under section 50 of the BC Employment Standards Act (ESA), a pregnant employee may have up to 17 consecutive weeks of unpaid leave, subject to certain conditions on the timing of that leave. (Note that this leave is different than parental leave, which we discussed in a separate blog post here.)
  • The ESA also provides that the employee must ask for this leave in writing, and that the employer may require a medical certificate to support this request, containing certain specific information.
  • Under section 54 of the ESA, an employee who has requested pregnancy leave cannot be dismissed because of her leave, nor can her employer change a condition of her employment because of her pregnancy leave. Upon her return to work, the employee must be put back into the position that she had before her leave, or one that is comparable.

In short, a pregnant employee in BC is entitled to accommodation on the job (to the point of undue hardship to the employer), a certain amount of pregnancy leave, and job protection. The employer is entitled to ask for certain medical information, but cannot discriminate against or fire the employee for requesting the leave.

Where an employer has created a fair, collaborative, and respectful work culture, workplace accommodations can and should occur as a matter of course.

However, if you are pregnant and have any concerns or doubts about how your employer will respond to a request for accommodation or pregnancy leave, we encourage you to contact us to discuss your rights and options.

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