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Complying with Pregnancy Discrimination and Leave Laws | Download free FMLA checklists and FAQ’s

1.  What laws govern the employment of pregnant workers? 
2.  Is pregnancy covered by the ADA? 
3.  Do we have to hire a pregnant applicant? 
4.  Can we require employees to tell us as soon as they know they are pregnant? 
5.  Can we discipline a pregnant employee for performance and attendance problems? 
6.  Do we have to provide light duty or part-time work for pregnant employees?
7.  Can we require a pregnant employee to take leave if we think her job will endanger her pregnancy? 
8.  How much leave do we have to offer pregnant employees? 
9.  Can we offer pregnant employees more leave than we offer employees with other temporary disabilities? 
10.  Do I have to reinstate employees who take pregnancy-related leave? 
Know the Law and Be Consistent

As long as you have female employees, it is a sure bet you will have to deal with issues relating to pregnancy, and even discrimination.  Below, we tackle common questions about pregnancy discrimination and leave laws. Get your FREE access to this and 100's of FREE HR resources today.

Most employers know that they cannot discriminate against a pregnant woman based on the fact of her condition.  But, when is it appropriate to consider factors that affect her ability to perform the job and that are linked to her pregnancy, like absences for prenatal care or restrictions on lifting?  Pregnant employees are protected by a number of different laws, and sorting through them can be confusing.  To help clarify your obligations, below are the answers to ten of the most commonly asked questions related to pregnancy discrimination and leave law compliance.  Creating HR Policies or Employee Handbook?

1. What laws govern the employment of pregnant workers? 

Federal and state laws governing pregnancy generally fall into two categories – prohibitions against adverse employment actions and rules covering pregnancy-related leave.

The primary law prohibiting adverse employment actions against pregnant employees is the federal Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act to recognize discrimination based on pregnancy as a form of sex discrimination.  The PDA applies to employers with 15 or more employees and requires covered employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees with temporary disabilities.

Pregnancy-related leave is covered by the PDA, the Family and Medical Leave Act (FMLA) and, in limited circumstances, the Americans with Disabilities Act (ADA).  These laws govern how pregnant employees should be treated when they are not able to work as a result of their pregnancy.  The ADA covers employers with 15 or more employees, while the FMLA applies to employers with 50 or more employees and to all public agencies and schools, without regard to the number of employees.  A pregnant employee is eligible for FMLA leave if she (1) has worked for the employer for at least 12 months (not necessarily consecutively), (2) has worked for the employer for at least 1,250 hours in the previous 12 months, and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees.

In addition, several states also have leave laws similar to the FMLA or that apply only to pregnancy that should be consulted.

2.   Is pregnancy covered by the ADA? 

Generally, a normal pregnancy resulting in temporary disability is not covered under the Americans with Disabilities Act (ADA).  However, in certain limited circumstances, a pregnant employee who is experiencing substantial complications that limit a major life activity may be considered disabled under the ADA and entitled to accommodation. 

3. Do we have to hire a pregnant applicant?  What if we are concerned about her ability to do the job because of the pregnancy? 

The PDA does not require that you hire pregnant women, but rather that you treat them the same way as other applicants with temporary disabilities.  This means you cannot refuse to hire a woman because of her pregnancy if she is qualified and is able to perform the job. 

To avoid potential liability, you should not discuss an applicant’s pregnancy during an interview, even if her condition is obvious.  Instead, you should focus on the requirements of the job and the candi-date’s ability to meet them.  If, for example, it is vital that the applicant start work immediately and take no leave for the first six months of employment, ask the applicant if she can meet those requirements.  If she says she cannot, you are under no obligation to hire her.  Just make sure you are imposing the same requirements on all applicants.

4. Can we require employees to tell us as soon as they know they are pregnant? 

When it comes to reporting requirements, employers may not burden pregnant workers with more stringent reporting rules than it requires of others who will need disability leave.  Thus, if you only require 30 days notice of the need for foreseeable leave (as the FMLA allows), you cannot require pregnant employees to give more notice.

5. Can we discipline a pregnant employee for performance and attendance problems? 

Generally, yes.  Although a pregnant employee is protected from discrimination, you do not have to tolerate poor performance or attendance simply because she is pregnant.  You may hold her to the same work standards as other employees, as long as you apply them consistently. 

If her performance or attendance problems are related to her pregnancy (for example, she is late to work because of morning sickness or cannot lift boxes as required to perform her job), the PDA requires only that you treat her the same as you would any other employee with a temporary medical condition.  Thus, if you allow employees with temporary medical conditions to be late because of their conditions or accommodate their lifting restrictions, you should apply the same standards to a pregnant employee.

Note, however, if she is covered under the FMLA, you may have to take her pregnancy into consideration if her attendance problems are caused by pregnancy-related medical conditions.  Absences that qualify as FMLA leave should not be counted when determining whether an employee’s attendance problems warrant discipline or discharge.

6. Do we have to provide light duty or part-time work for pregnant employees?

The answer depends on your policies and the employee’s FMLA eligibility.

Your policies.  The PDA does not specifically require an employer to transfer a pregnant employee to a light duty position or part-time work to accommodate her pregnancy.  However, if you have a policy or practice that normally allows an employee with a temporary medical condition to transfer to a position that better accommodates his condition or to work part-time, then you should do the same for a pregnant employee. 

The FMLA.  The FMLA allows employees with serious health conditions, including conditions related to pregnancy, to take leave on a reduced work schedule if it is “medically necessary.”  A reduced work schedule refers to a schedule that reduces an employee’s usual number of hours for a period of time, such as switching from full-time to part-time work for several weeks.  According to the FMLA regulations, a reduced work schedule is “medically necessary” if an employee has a serious health condition that requires a treatment regimen which is best accommodated by this type of leave.  Thus, if a health care provider certifies a pregnant employee’s need for part-time work, you may have to provide that schedule.  The FMLA does not specifically require light duty, however.

7. Can we require a pregnant employee to take leave if we think her job will endanger her pregnancy? 

As a general rule, you cannot require a pregnant employee to take a leave if she can perform her job duties.  According to an Equal Employment Opportunity Commission (EEOC) policy guide, an employee who can perform the essential functions of a job must be considered eligible for employment, regardless of the presence of workplace hazards to fetuses.  According to the EEOC, it does not matter that the employer may be able to prove that the worker will be exposed to materials that are harmful to fetuses or that an employer will incur greater costs in hiring women.  Accordingly, if the employee is able to perform the job functions, your only course of action may be to notify her of potential hazards and encourage her to discuss them with her doctor to determine if she should continue working.

If, however, the employee is unable to perform the job functions, such as if she is restricted in standing or lifting, you can offer her a leave, or a transfer if a position is available, as allowed by your normal policies or the FMLA (if that law applies).  (See questions 6, above, and 8, below.) 

8. How much leave do we have to offer pregnant employees? 

The two major federal laws regulating pregnancy and childbirth leaves are the PDA and the FMLA.

The PDA.  Because the PDA is an antidiscrimination law rather than a leave law, it does not require covered employers to give pregnancy leaves of any specific duration.  Instead, it requires employers to provide pregnant employees the same leave and benefits granted to nonpregnant employees with temporary disabilities.  According to guidelines issued by the EEOC, policies relating to the commencement and duration of leave, availability of leave extensions, accrual during leave of seniority and other benefits and privileges, insurance coverage, and reinstatement after leave all must apply equally to both pregnancy and other temporary medical disabilities.

The FMLA.  In contrast, the FMLA is a leave law, and it requires covered employers to give eligible pregnant employees unpaid leaves of up to 12 workweeks during any 12-month period.  The FMLA provides leave for pregnant employees in two circumstances.  First, an employee can take FMLA leave if she is unable to work because she has a serious health condition related to her pregnancy.  The FMLA regulations state that any period of incapacity due to pregnancy, as well as prenatal care visits, is a serious health condition.  Alternatively, once the employee is able to return to work after giving birth, she can take any remaining FMLA leave to care for her newborn child (up to a total of 12 weeks of leave in a 12-month period).

In addition, state law should be consulted since a few states (such as California and Tennessee) have enacted laws that require pregnancy leaves.  These state laws typically require longer pregnancy leaves than the leave mandated by the federal laws.

9. Can we offer pregnant employees more leave than we offer employees with other temporary disabilities? 

Although employers may not treat pregnant employees worse than other temporarily disabled employees, some preferential treatment of pregnant employees may be lawful.  In California Federal Savings and Loan v. Guerra, 479 U.S. 272 (1987), the Supreme Court held that a state can require employers to provide a benefit to pregnant employees, such as additional leave, which is not granted to other temporarily disabled employees.  This decision appears to allow employers to give pregnant employees more leave than is given to other employees.

One caveat should be noted.  This preferential treatment may apply only during the period when the employee is actually disabled as a result of the pregnancy.  Employers generally must give the same leave benefits to both male and female employees who take parental leave to care for a newborn.  Therefore, if you offer female employees leave for childcare when no disability exists, you also should offer male employees equivalent leave.

10. Do I have to reinstate employees who take pregnancy-related leave? 

The FMLA specifically requires reinstatement, while the PDA requires consistent treatment of pregnant employees.

The FMLA.  As a general rule, the FMLA requires that an employee be restored to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.  The FMLA does not require reinstatement once the FMLA’s 12-week entitlement has been exhausted.

The PDA.  The PDA requires employers to permit an employee on pregnancy leave to return to her job on the same basis as other employees returning to work from sick or disability leave.  For example, the reinstatement of an employee returning from pregnancy leave cannot be conditioned on the availability of an appropriate vacancy if the same restriction does not apply to employees returning from other disability leaves.  Similarly, you may not require an employee returning from pregnancy disability leave to certify her ability to return to work unless all employees returning from medical leaves to the same type of job are required to do so. 

Know the Law and Be Consistent

Many employers are uncomfortable when dealing with pregnant employees because they do not understand their obligations and are afraid of making mistakes that could lead to costly lawsuits.  However, you should not let compliance fears keep you from making legitimate job-related decisions.  A sound grounding in pregnancy discrimination and leave issues should help you find practical solutions to the questions that arise.  Your first step should be to treat pregnant applicants and employees the same as you treat other candidates and employees with temporary medical conditions.  In other words, be fair and consistent.  And, when in doubt, consult your legal counsel for help in protecting against discrimination and FMLA claims.

 

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

 
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