What does the law specifically require in terms of temporary transfers? From previous posts, it is clear that if a fire department offers temporary transfers to firefighters with non-work related conditions, then pregnant firefighters must be offered the same option. This is a general rule relating to pregnancy discrimination, given the Pregnancy Discrimination Act (PDA), part of Title VII of the Civil Rights Act. State and local laws governing pregnancy discrimination should leave to the same result.
Here in Illinois, we have taken it a step further. A provision of the Illinois Human Rights Act makes it a civil rights violation
For a public employer to refuse to temporarily transfer a pregnant female peace officer or pregnant female fire fighter to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated.
In this regard, I have seen at least one collective-bargaining agreement provision for an Illinois municipality to containing the following language:
An Employee who becomes pregnant, if she so requests, with the advice of her physician, may be temporarily transferred to a less strenuous or hazardous position for the duration of her pregnancy where the transfer can reasonably be accommodated.
Part-time, volunteer and paid on-call firefighters are not covered by this Illinois law. However, if part-time or paid on-call firefighters suffering non-work related conditions are offered temporary transfers, then, again, under the PDA and Illinois law generally, part-time and paid on-call firefighters must be offered the same opportunity.
California has a broader law than Illinois: Using similar language, its Fair Employment & Housing Act makes it a civil rights violation to refuse to transfer any pregnant employee, regardless of what her job is, if the temporary transfer can be reasonably accommodated. Other than the Illinois law, specifically addressing firefighters, and the broader California law, my research indicates no other state law mandating the temporary transfer of a pregnant firefighter where that need can be reasonably accommodated.
The Family & Medical Leave Act provides for temporary reassignments, but that right is limited to an employee who is taking intermittent leave or working on a reduced leave schedule. Further, that type of transfer is designed to temporarily place the employee in a position which better accommodates her need for time off – as opposed to placing the employee in a less hazardous or strenuous position during her pregnancy. Thus, looking to the FMLA for support for a temporary transfer is likely to fail.
What about the federal Americans with Disabilities Act or similar state laws? Pregnancy, in and of itself, is not considered a disability under that law, so there is no automatic reasonable accommodation requirement. It remains the government’s position that because pregnancy does not result from a “physiological disorder,”Some commentators have suggested that the ADA, as amended, should cover pregnancy in and of itself, but no judicial decisions have yet, to my knowledge, been issued in this regard. However, a woman’s pregnancy may exacerbate an existing medical condition recognized as a covered disability, giving rise to the consideration of a temporary transfer – for example, a diabetic’s condition may be worsened by pregnancy. Further, complications resulting from the pregnancy might be considered covered disabilities, necessitating the consideration of a temporary transfer. Remember, of course, that under the ADA, the employee is entitled to a reasonable accommodation, not necessarily the reasonable accommodation of her choice. But how do we square that with the PDA’s requirement that we treat pregnant firefighters like others disabled by non-work related conditions?
And that is why I have a job.