Pregnant Employees, Working Parents and Employee Leave

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

Pregnancy-related leave issues are addressed under the Pregnancy Discrimination Act (PDA) – which amended Title VII of the Civil Rights Act of 1964 to recognize pregnancy discrimination as a form of sex discrimination, the Family and Medical Leave Act (FMLA), and, in limited circumstances, the Americans with Disabilities Act (ADA). The laws govern how pregnant employees should be treated when they're unable to work because of their pregnancy. Many states also have laws regarding pregnancy discrimination, pregnancy leave, and family and medical leave laws, and a growing number of states require employers to make an effort to provide a room where employees who breastfeed their babies can express milk at work. Even if this isn’t required in your state, it could help employee retention.

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Childbirth, adoption, foster care, and family and medical leave
New fathers and mothers who are covered by the FMLA are entitled to leave -- up to 12 weeks per year -- under a variety of circumstances. (Note: The father must be married to the mother to be entitled to FMLA leave to care for her or take her to the doctor’s office for prenatal care.) It’s illegal to punish an employee in any way for taking FMLA leave. If an employer isn't an FMLA-covered employer or the employee either isn’t eligible for or has exhausted her FMLA leave, the employer still may have an obligation to provide the leave under Title VII as amended by the Pregnancy Discrimination Act.

The mother-to-be is entitled to leave -- including any intermittent leave for which she may qualify -- for any incapacity due to pregnancy, as well as for prenatal care and any serious condition following childbirth. She doesn’t have to provide a separate FMLA certification for each bout of morning sickness. Intermittent leave to bond with a healthy baby may be granted voluntarily by the employer. Either parent’s entitlement to leave for a birth, adoption, or fostering ends 12 months after the birth, adoption, or placement in foster care.

If both parents are eligible for FMLA, married, and employees of the same employer, then they may be limited to a combined total of 12 weeks of leave in any 12-month period for childbirth, adoption, or foster care, to care for the child, or to care for the employee’s parent with a serious health condition. Notice that the limitation does not include the employees’ own serious health condition or that of the baby. The Department of Labor (DOL) regulations provide that a husband and wife who work for the same employer may take the full 12-week FMLA allotment to care for a baby with a serious health condition. Also, be sure to check your state’s pregnancy disability laws for additional requirements

Employees can take up to 12 weeks of FMLA leave after a child is placed for adoption with them, subject to limitations discussed above. This includes an employee adopting his own stepchild, and foster parents when a child is placed in their home.

Before a child is placed in an employee’s home, the employer must allow the employee to take intermittent FMLA leave as needed for activities that are needed to complete the adoption. After placement, the employer isn't required to give the employee intermittent FMLA leave to care for the newly adopted or foster child (unless the child has a serious health condition).

FMLA Compliance: Practical Solutions for HR and HR Q&A Book: Family & Medical Leave Act

Pregnancy and the Americans with Disabilities Act
In most cases, the ADA won't be a factor in how much leave an employee may take for pregnancy or maternity leave. Pregnancy in and of itself isn't a "physiological disorder" and therefore isn't an "impairment" under the ADA. Unusual or abnormal pregnancy complications, however, may cause a disability that the ADA covers.

ADA Compliance Manual for Employers

Safety issues and pregnancy in the workplace
Employers may have concerns about the safety of pregnant employees and their unborn fetuses, but those concerns shouldn't be translated into formal or informal workplace policies applied to all pregnant employees. Banning women from work environments to which men have access, even for the seemingly noble purpose of protecting the unborn fetus, is a form of sex discrimination. Similarly, employers may not force pregnant employees to take leave based on a real or imagined threat to the fetus' health.

Maternity and paternity leave
Employers can give maternity leave that’s more generous than the FMLA’s minimum requirement, but beware of giving better leave to new mothers as compared to new fathers and employees with other health problems. That could cause resentment and a sex discrimination charge from a man.

Audio Conference: Pregnancy Discrimination Claims Flood EEOC: How to Counter New and Aggressive Enforcement

Flexible work schedules for work/life balance for working parents
New parents may ask for nontraditional working arrangements to allow them more flexibility to better balance their work and life responsibilities. These arrangements might include telecommuting, part-time employment, a flexible schedule, or job sharing. Remember, there’s no FMLA right to reduced-leave schedules or intermittent leave after the birth, adoption, or fostering of a healthy child, although employers can choose to grant them voluntarily.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination, the FMLA, and the ADA

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Related articles on Employment Laws Regarding Pregnant Employees featured in HR Hero Line and the Employment Law Post

• U.S. Supreme Court reverses decision on decades-old maternity leave
  (HR News, May 2009)
• Attacking motherhood and apple pie: Pregnancy discrimiantion in the workplace
  (Alabama Employment Law Letter, May 2009)
• New FMLA regulations: holidays, joint employers, pregnancy and more
  (Kentucky Employment Law Letter, February 2009)
• Employers see dramatic rise in pregnancy discrimination claims
  (Arizona Employment Law Letter , February 2009)
• Important labor and employment decisions before Supreme Court
  (Federal Employment Law Insider, January 2009)
  
• Pregnancy complications: disability, no; sex discrimination, maybe
  (Connecticut Employment Law Letter, April 2008)
  
• Flexible workplace programs promote work-life balance
  (North Dakota Employment Law Letter, January 2008)

HR Tools for Pregnant Employees

• Sample Policy - Family and Medical Leave