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The Michigan Elliott-Larsen Civil Rights Act has long prohibited discrimination based on pregnancy, childbirth, and medical conditions related to pregnancy or childbirth (excepting non-therapeutic abortions not intended to save the life of the mother). On December 21, 2009, Governor Granholm signed into law a bill amending the pregnancy discrimination provisions of the Act to prohibit employers from treating — an individual affected by pregnancy, childbirth, or a related medical condition differently, for any employment related purposes, from another individual not so affected but similar in ability or inability to work, without regard to the source of any condition affecting the ability or inability to work.

At first glance, this amendment merely appears to bring Michigan law into line with the federal Pregnancy Discrimination Act, which defines discrimination “because of sex” or on the “basis of sex” to include discrimination — because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employmentrelated purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

However, the language “without regard to the source of any condition affecting the ability or inability to work” in the Michigan amendment could go much farther if it is construed to outlaw a practice that is common among employers — i.e., providing accommodations in the form of light duty work to employees who temporarily are unable to perform their regular duties due to work-related injuries, but not to those who have temporary non-work-related restrictions.

The bill amending the Elliott-Larsen Act was introduced in the Michigan legislature as a result of a lawsuit brought by female police officers in the U.S. District Court in Detroit, Prater, et al. v. Detroit Police Department et al., which is still pending. According to the complaint in that case, at one time the Detroit Police Department had a policy of providing light duty assignments to officers who were temporarily unable to perform all of their duties due to pregnancy. In 2004, the Department stopped offering light duty to pregnant police officers, as well as others who were injured off the job. According to the legislative analysis of the bill, this change was a result of a grievance brought by a male officer who was injured off the job and not given light duty. He claimed that pregnant officers were offered light duty, even though their inability to work was not job-related, and he should be allowed the same opportunity for light duty. The arbitrator ruled in his favor, and, as a consequence, the Department eliminated all light duty for off-thejob conditions.

With that history in mind, it is seems likely that courts will construe the text of the amendment to prohibit the practice of offering light duty to those injured on the job, but not offering it to those with temporary off-the-job work restrictions. However, it is possible that courts will interpret the phrase “without regard to the source of any condition affecting the ability or inability to work” as meaning that the employer cannot look at the specific source of the condition, e.g., a pregnancy or a car accident, but that it can still make a more general distinction between on-the-job and off-the-job injuries or conditions.

The latter interpretation would be consistent with the federal Pregnancy Discrimination Act and prior Michigan law. Federal courts examining the issue generally have found that is it lawful for an employer to distinguish between work-related and non-work-related restrictions in the provision of light duty work.  Such a policy is “pregnancy blind” as it only looks at whether the condition was work-related, not whether it was pregnancy versus some other condition. The former pregnancy discrimination provisions of Michigan law also have been construed to allow this practice.

Many employers have policies or collective bargaining agreements providing light duty to those temporarily injured on the job, but not to others. Michigan employers should consult legal counsel regarding the implications of this new pregnancy discrimination provision on their specific policies.

In addition, employers must keep in mind the Americans with Disabilities Act (ADA) when reviewing their light duty policies. Under the ADA, employers are required to provide reasonable accommodation to employees with protected disabilities (so long as the accommodation does not constitute an undue hardship), regardless of whether the disability is work-related or non-work-related. Reasonable accommodation may include the elimination of non-essential job functions, which may produce a light duty assignment in some cases. But the ADA does not require employers to provide accommodations, including light duty assignments, to employees who have medical restrictions that do not rise to the level of a protected disability. Nevertheless, many employers voluntarily have provided light duty for employees who have workrelated injuries that are not disabilities in order to reduce workers’ compensation costs. The 2009 amendments to the ADA broadened the definition of disability under the ADA, portending that more employees will be considered disabled under the ADA. Once again, employers would be prudent to have legal counsel review light duty policies that are intended to apply to employees who do not have ADA-defined disabilities to ensure that they continue to be compliant with the ADA.

Sonja L. Lengnick

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