Born during a pandemic: COVID's impact on pregnant employees and their employers
Overall, the pregnancy experience during COVID-19 is less than ideal.
The COVID-19 pandemic forced many individuals to modify their daily actions and behaviors. For both employers and employees, this included adapting to new working conditions and modes of health care delivery. Having been pregnant during the pandemic provided valuable insight which hopefully will be useful for employers who have or may have pregnant employees during this crisis.
As change is not always easy, this “new normal” created many obstacles and feelings of uncertainty. The extra stress and anxiety created further complications for pregnant employees as they were forced to navigate their work, life and health care needs with the unknowns of COVID-19. As a result, being pregnant during a pandemic presented unique challenges for employees and employers.
Related: Changing perceptions of health benefits, one pregnancy at a time
Preparation and communication are the best ways to prevent misaligned expectations and conflict. Recent guidance suggests that pregnant women may be at an increased risk for severe illness from COVID-19 compared to non-pregnant women. Employers should pay particular attention to the needs of their pregnant employees, and how they may change because of COVID-19.
Working conditions
COVID-19 related lawsuits by pregnant employees regarding pregnancy discrimination are trending across the country. High-risk factors of exposure to COVID-19 and potential adverse pregnancy complications create the need for pregnant employees to request reasonable accommodations. Recent pregnancy discrimination litigation cases involve the denial of requested accommodations and termination of pregnant employees for declining to work in direct contact with known COVID-19 patients.
As offices are opening again and employees return to work, employers should familiarize themselves with the various protections and safeguards in place for pregnant employees to ensure they avoid such litigation.
The Americans with Disabilities Act Amendments of 2008 (ADAAA) expanded the definition of “disability” to more easily include pregnant employees with pregnancy-related conditions to find they have disabilities that may entitle them to reasonable accommodation. For example, with the increased risks associated with COVID-19 for pregnant employees, reasonable accommodation may be continuing to work from home.
Pregnancy-related anxiety is generally a condition protected under ADAAA. Adding the stress of COVID-19 on top of the typical pregnancy anxiety may create circumstances where the pregnant employee cannot continue a normal schedule. As a result, employees pregnant during COVID-19 may need to request a reasonable accommodation.
An employer cannot retaliate or punish pregnant employees for exercising their rights for an accommodation. Further, employers may not treat pregnant employees differently by terminating or reducing hours related to COVID-19 and pregnancy, as that may constitute pregnancy discrimination.
Heightened risk of COVID-19 related complications for pregnant employees may increase the frequency of pregnancy-related accommodation requests. As a result, employers should be ready to address and respond to these requests. Employers should designate an individual to field all inquiries. The designated individual should be sure to respond quickly to requests and appropriately grant eligible accommodation requests. Employers must take care to document and explain all actions surrounding these requests.
Health care needs
During the pandemic, many people re-examined how best to consume necessary medical treatment. For some, the pathway for care was easier as telehealth services became widely accessible. Others chose to reschedule services considered preventive or elective. The option to delay care, however, was not available for pregnant employees.
COVID-19 impacted the receipt of prenatal health care services. Pregnant employees generally still have the same total number of appointments as they would have had pre-COVID-19, but certain appointments were converted to virtual appointments. Prenatal visits are important to check on the general health of pregnant women, but also to tend to the psychological aspect of transitioning to motherhood with physicians offering reassurance and support. The effect (positive or adverse) of fewer in person visits in favor of virtual visits is unclear. A second-time mom, however, might argue that increased virtual visits are an advantage as it is less work to miss and less worry about finding childcare for the older siblings.
Another important component of pregnancy is the ultrasounds. The total number of ultrasounds remains the same, but pregnant women during the pandemic are often asked to come to these appointments alone as part of COVID-19 risk reduction protocols.
As a result of the pandemic, pregnant women evaluated the best delivery option. For example, some pregnant women were now more open to the idea of home births, working with midwives and birthing centers. The rationale that this would lessen the anxiety associated with a hospital setting birth during COVID-19.
Overall, the pregnancy experience during COVID-19 is less than ideal. Between fewer in-person visits, solo ultrasound appointments and ongoing COVID-19 stresses being pregnant during a pandemic is not easy. Hopefully, the experiences faced by pregnant women during the pandemic will inspire providers to deliver more innovative and efficient healthcare.
Maternity leave and returning to work
In addition to the ADAAA discussed above, employers should ensure they comply with the Pregnancy Discrimination Act and Family and Medical Leave Act provisions, and any state leave laws. For example, beginning on January 1, 2021 Massachusetts employees may be eligible for paid leave under the new Paid Family and Medical Leave law. As in non-pandemic times, employers must work with pregnant employees regarding their rights for leave. A further wrinkle might be added, however, if the pregnant employee needed to use leave prior to giving birth due to COVID-19.
Maternity leave during a pandemic is likely not a pregnant employee’s dream. Being homebound or quarantining may perpetuate existing feelings of isolation. It is challenging enough to find childcare, but with reduced capacity and COVID-19 risk reduction protocols the task is even harder. With social distancing, it also creates obstacles for new moms to reach their support networks.
Employers should also carefully review their return to work requirements. With new distancing rules and safety protocols, employers must still abide by federal and state laws. For example, nursing employees need an appropriate space and break times to express milk. Prior to returning to work, employers should touch base with employees regarding these needs.
In navigating these challenges, pregnant workers may need additional support from their employers. Employers must remain mindful of the extra hurdles COVID-19 presents, and adapt accordingly.
Jennifer M. McCormick joined The Phia Group, LLC as corporate counsel in 2008. As the Senior Vice President of Phia Group Consulting, Attorney McCormick concentrates on a variety of healthcare and regulatory issues facing employee benefit plans and their administrators. As Senior Vice President of Phia Group Consulting she focuses on health benefit plan regulatory compliance services, including but not limited to self-funded health plan consulting, health plan exclusions, health plan limitations, health plan revisions, defining key items such as usual and customary fees, and the entire health plan summary plan description and summary of benefits and coverage. She is a constant contributor to The Phia Group’s webinars and other educational media.
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