Businesses continue to grapple with the realities of working during the COVID-19 pandemic and the quickly evolving legal landscape regarding returning employees to work. A number of new lawsuits related to pregnancy discrimination have been recently filed because COVID-19 can present an elevated immune and respiratory risk to pregnant women.

In California, an employee alleged that she was terminated shortly after requesting an accommodation due to the high-risk factors of exposure to COVID-19 as a pregnant employee. In New Jersey, a pregnant employee filed suit against her former employer after she declined to work a shift that would require her to work directly with COVID-19 patients and was subsequently terminated. Another case in New Jersey alleges that an employer terminated a pregnant employee prior to her FMLA eligibility date to avoid accommodating her until that date.  In Texas, a pregnant employee filed suit after she was furloughed and later terminated when almost all other employees returned to their positions.

In all of these cases, the plaintiffs allegedly requested accommodations or a furlough due to a heightened risk of COVID-19 related complications due to their pregnancy.  Also in all of these cases, the plaintiffs were terminated after making their requests. 

Employers should be mindful of this growing trend of sex-based discrimination claims when responding to COVID-19 related requests for leave and accommodations.  Employers must ensure that their employment decisions are not made because of pregnancy or do not have a disparate impact on pregnant employees.