pregnancy1With all the talk about the Supreme Court deciding a pregnancy discrimination case this term and what it means for federal law, there is a separate Connecticut law on the subject — a portion of which you are probably unfamiliar with.

Yes, you probably know that if you’re an employer with three or more employees, you can’t fire an employee because of her pregnancy or even refuse to grant that employee a reasonable leave of absence for disability resulting from her pregnancy.

You may even know that you have to reinstate an employee to her original job or an equivalent position unless the circumstances have so changed as to make it impossible or unreasonable to do so.

But buried deep in a paragraph of Conn. Gen. Stat. Sec. 46a-60(a)(7) are these clauses which makes it illegal to:

  • (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position.

The last two of these provisions are fairly straightforward and requires the employer to provide notice in some instances.

But it’s the (E) provision that is the trickiest.  It requires an employer to make a “reasonable” effort to transfer a pregnant employee to any “suitable” temporary position which “may” be available where the employee gives written notice and either her employer or she “reasonably believes” that the current position “may” cause injury to the employee or fetus.

If you haven’t noticed, that’s a lot of “may”s and “reasonably”s.  And it creates a great deal of uncertainty.

Suppose a pregnant employee works at an amusement park and the park just had an limited outbreak of measles.  She works as a cashier with lots of interaction with the public.  The employee asks to be transferred to a “back office” position on a temporary basis because she believes that — even though she has the vaccine — working as a cashier may expose her and her fetus to contact with measles. And besides, no vaccine is fool proof.  She even has her doctor write up that the employee should avoid extensive contact with members of the public while pregnant due to the measles outbreak.

What’s the employer to do?

So, looking at the statute, note that it is the employee’s “reasonable belief” of possibly injury to her or her fetus that dictates what needs to occur.  How is that determination made? What standards should apply”? Is the CDC’s website on the subject enough?

And does an employer have to create a temporary position? What is “suitable” in these circumstances.

Lest you think this is a mere hypothetical, a significant case arose under this statute over 20 years ago — Fenn Mfg. v. CHRO. And earlier this year, a federal court looked at this same statute.  We’ll talk about that in a followup post.