Liz Watson, Senior Advisor

On FMLA’s 20th birthday, America should celebrate this critical piece of legislation, which gave millions of workers the right to job-protected, unpaid leave. But we must also recognize how much farther we have to go in creating a workplace that takes into account the caregiving needs of the 21st century workforce.

First, the celebration: Thanks to the FMLA, millions of workers have been able to take time off from work without risking their jobs to care for a new child, for their own illness, or to care for family members who were sick. Ninety-one percent of employers report that complying with the FMLA has had either positive or neutral effects on their businesses. The positive business impacts noted by employers include reductions in employee absences, reductions in turnover, and improved morale. Eighty-five percent of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect on their businesses.

The bottom line: the FMLA has been wildly successful. And now we should build on that success.

Peggy Young was a UPS truck driver. When employees at her jobsite needed changes to their job duties because they had a disability, or an on-the-job injury, or even a D.U.I. conviction that prevented them from driving legally, UPS provided it. However, when she asked for light duty in order to avoid heavy lifting for a few months because she was pregnant, her employer refused and forced her onto unpaid leave for the duration of her pregnancy. Unfortunately, last week the Fourth Circuit Court of Appeals held in United Parcel Service, Inc. v. Young, that in doing so, UPS did not violate the Pregnancy Discrimination Act (PDA), despite the PDA’s requirement that employers treat pregnant employees the same as other employees who are “similar in their ability or inability to work.” The court held that taking this language literally would “transform an antidiscrimination statute into a requirement to provide accommodation to pregnant employees” and concluded that Congress did not intend this result. It came to this conclusion even though in passing the PDA, Congress stated, “[W]hen pregnant women are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.”

The Fourth Circuit’s decision is extremely troubling, but to quote an aptly-titled article on the decision, Pregnancy Bias Fight Not Over, Despite 4th Circ. Ruling. The article notes that because the Americans with Disabilities Act (ADA) was expanded in 2008 to require employers to provide accommodations to workers with temporary disabilities, employers may be “guilty of discrimination for not providing pregnant workers the same accommodations” when they have similar temporary restrictions on their ability to work.