Federal law prohibits discrimination on the basis of pregnancy pursuant to the Pregnancy Discrimination Act (PDA) of 1978. The PDA, which was an amendment to Title VII, does not affirmatively require reasonable accommodations for pregnant women. However, pregnancy-related conditions may qualify as a disability under the ADA, triggering reasonable accommodation obligations. In addition, a variety of state laws similarly prohibit pregnancy discrimination and require reasonable accommodations for pregnant women. Therefore, employers will need to consider exemptions for pregnant women.

For instance, Employers who excuse non-pregnant or male employees from obtaining the vaccine on other grounds–such as a medical condition–may be subject to a disparate treatment claim under the PDA for refusing to provide a similar exemption to pregnant women.

.Also certain conditions related to pregnancy (e.g., gestational diabetes or preeclampsia) may constitute disabilities under the ADA that would trigger the employer’s obligation to reasonably accommodate the pregnant employee. Refusal to provide such accommodations may subject an employer to liability under the ADA and state law.

The need for employers to consider exempting pregnant (and potentially nursing) women from a vaccine requirement is heightened by the fact that none of the currently available vaccines have been fully tested on pregnant or lactating women. Moreover, employers should be cautious about demanding that unvaccinated pregnant women work from home until they can be vaccinated–as this may also lead to a discrimination claim based on pregnancy, disability, or sex.

If you believe that you have suffered an adverse consequence at work for being pregnant, contact us at DeToffol & Gittleman for a free consultation.