Workplace Issues

Pregnancy Issues in Law Enforcement

One of the most frequent questions we receive at the National Center for Women & Policing is from women officers who are pregnant and trying to find out what other agencies are doing on issues of pregnant officers. As law enforcement agencies increase their numbers of women employees, they are bound to face this issue. "Recruiting & Retaining Women: A Self-Assessment Guide for Law Enforcement" written by the National Center for Women & Policing provides information and resources to address this issue. Insert hotlink here. The guide includes contact information and model policies. The following excerpts are taken from the guide:

Agencies Are Not Providing Employees With Adequate Information. Providing employees with clear policies is the first step in addressing the needs of pregnant employees. While the passage of the 1993 Family and Medical Leave Act (FMLA) established federal minimum leave requirements for private, state, and local government employees, it does not cover the full range of issues that women in law enforcement face when they become pregnant. There is a tendency for departments to rely too heavily on the FMLA, neglecting to provide women with the specific policies and information on such important issues as notification procedures, availability of light duty assignments, paid and unpaid leave benefits, range qualification for pregnant employees, maternity uniforms, and other issues.

Some Agencies Have Unlawfully Discriminated Against Pregnant Employees. One of the biggest complaints from pregnant female sworn officers is that when they notify their department that they are pregnant, they are removed from their position. There are sometimes no efforts to find light duty positions for pregnant women.

Legal Issues

Discrimination on the basis of pregnancy, childbirth, or a related medical condition is discrimination on the basis of sex. Women affected by pregnancy, childbirth, or related medical conditions should be treated the same for all employment-related purposes, including receipt of benefits, as other persons not so affected but similar in their ability or inability to work. For example, pregnant women should be treated the same as a man who breaks his leg in an off-duty accident. Employers are prohibited from forcing a pregnant employee to take disability leave as long as the employee is still physically fit to work. Employers may not alter a woman's assignment against her will based on her pregnancy if that decision is based on stereotypes about what kind of work pregnant women should do or on concerns about how the public or other officers will react to a pregnant officer.

The FMLA provides agencies with a starting point for developing leave policies. This law contains provisions on such issues as employer coverage, employee eligibility, entitlement to leave, maintenance of health benefits during leave, job restoration after leave, notice and certification of the need for FMLA leave, and protection for employees who request or take FMLA leave.

The FMLA provides minimum guarantees. It does not take away other benefits provided through employer policy or collective bargaining agreements. Moreover, many state laws provide greater protections for pregnant and parenting employees than the federal FMLA. Thus, if contract or state law already requires the department to provide more family and medical leave than the FMLA mandates, the FMLA does not reduce that requirement. Agencies must comply with whichever provisions are most generous to the employee. Correspondingly, collective bargaining agreements may not be used to diminish workers' rights under the FMLA. Similarly, the Pregnancy Discrimination Act (PDA) requires that pregnant women and women disabled by childbirth or related medical conditions be treated at least as well as employees who are not pregnant but who are similar in their ability or inability to work. The PDA does not prohibit the provision of additional benefits to pregnant employees.

US Supreme Court decision in UAW v. Johnson Controls. In this landmark sex discrimination case, the Supreme Court ruled that employers were prohibited from adopting fetal-protection policies that exclude women of child-bearing age from certain hazardous jobs. This decision as well as others has established that employers are prohibited from forcing a pregnant employee to take disability leave as long as the employee is still physically fit to work.

Comprehensive Policies
The most important first step a department can take is to develop a comprehensive policy regarding pregnancy and childcare issues. An agency policy should cover the following areas:

• Eligibility for and Duration of Pregnancy and Child Care Leave. Under the FMLA, eligible employees may take 12 weeks of unpaid leave for the birth or adoption of a child. If an employee elects to use accumulated paid leave benefits such as sick leave, vacation or compensation time, departments should not count this time toward the 12 weeks of leave, although the FMLA allows them to do so. Conversely, departments should not require that an employee exhaust all sick, vacation, holiday, and personal leave before they can apply for unpaid leave. Many departments will want to consider allowing longer periods of pregnancy and child care leave and should make every effort to permit the maximum amount of child care leave. For example, the New York State Police allows employees up to 1 year of unpaid leave, which is an extension of the state's permitted 7 months. The availability of such leave may well be a factor in recruiting and retaining qualified women. The department should structure such leave so that the taking of leave does not hinder performance ratings or opportunities for advancement. The time on unpaid leave should count in determining an officer's seniority. To the extent leave is available for childcare purposes, it should be available to men on the same basis.
  
  
• Light Duty. One of the most critical components of a pregnancy policy is inclusion of a light duty policy. Many pregnant women officers in law enforcement positions will want the option of moving to a light duty assignment at some point in their pregnancy. Without the option of a light duty assignment, many women may have to take unpaid leave, creating financial and emotional hardships that can be avoided. Light duty assignments may include a transfer to different duties or a modification in current duties. If the department provides light duty assignments for other employees who have non-service related temporary disabilities, then they are required by law to provide the same assignments for pregnant employees. However, a pregnant officer should not be forced into a light duty assignment against her will if she is physically able to safely perform her current assignment. If the officer's ability to perform her assignment is at issue, consultation with a physician may be necessary. The best light duty policies are flexible; have no time limit on how long a pregnant woman can be assigned to light duty; leave the decision as to when to commence a light duty assignment with the pregnant officer and her physician; and stipulate that officers on light duty will continue to receive normal promotion and pay increases while in that status, and that retirement benefits will not be affected.
  
  
• Range Qualification. Both the exposure to lead poisoning and the noise from firing firearms may be harmful to the fetus. Because of this, many departments have eliminated range qualification for pregnant officers until they return to work, whereupon they are tested. For example, the New York State Police eliminated range qualification for pregnant employees; they are tested once they return from maternity leave. Other departments such as the Portland Police Bureau are opting to create safeguards that allow women to continue to fulfill their weapons qualification while pregnant. When this is the case, measures must be taken to provide a safe environment for testing consistent with the recommendation of the officer's physician. Safeguards may include substituting live fire shooting for dry fire capability; providing lead-free ammunition; providing sound silencers for the pistols; using firearms simulation technology and removing the requirement that a pregnant woman test on the department shotgun. Many law enforcement agencies are utilizing firearms simulation technology that could be used for pregnant women. Departments should also provide lead-free ammunition for women who are breast-feeding.
  
  
• Uniforms. Providing pregnant employees who wear uniforms on a day-to-day basis with maternity uniforms is critical to making pregnant women feel valued by their department. The lack of a proper uniform should not be a factor in a pregnant women's decision to leave her job. Providing uniforms for pregnant employees sends a strong message to those inside and outside the department that women law enforcement officers can be both mothers and criminal justice professionals. Some departments provide that pregnant officers transferred to light duty may wear civilian clothing. However, a department may elect to permit the wearing of a specially designed maternity uniform, if such a uniform is available. On this issue, the wishes of the employee should be given the utmost possible consideration.
  
  
• Disability Insurance and Paid Leave Benefits. Several states, including California, Hawaii, New Jersey, New York, and Rhode Island and Puerto Rico pay partial wages during time off from work for medical problems, including those of pregnancy. This law is termed "temporary disability insurance." Federal law requires that these benefits be afforded to women disabled by pregnancy on the same basis as they are provided for other temporary disabilities. In addition, some agencies also offer this type of insurance. Agencies should notify employees about what kinds of disability benefits are available and have a designated person assist the employee in determining how much time she can take in a full-pay status as well as in a reduced pay status.

Agencies that seem to be supportive of their employees with pregnancy issues and who could be contacted for further information are:

· Portland Oregon Police Bureau - Commander Lynnae Berg
· New York State Police - Colonel Deborah Campbell
· Houston Police Department - Women's Coordinator

Sites with Further Information
We have listed below some sites that will give you further information about pregnancy discrimination. If you believe that you have experienced discrimination and intend to file a complaint, remember that there is a statute of limitations that may vary from state to state. Check with the U.S. Equal Employment Opportunity Commission office nearest you or check with your state Department of Labor for more information on how to file a formal complaint.

- EEOC fact sheet on employees rights in pregnancy discrimination

- If you are a federal employee

- EEOC statistics on pregnancy discrimination case

- National Employment Lawyers

- Workplace Fairness

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