Overview: Employers need to consider many laws and benefits when an employee discloses she is pregnant. Applicable laws include the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and state law(s). Other important considerations are employer policies, legally required benefits such as short-term disability (STD) or paid leave insurance, and any collective bargaining agreements that may provide for paid leave.
Employers must be careful not to discriminate against pregnant employees or fail to accommodate pregnant employees when applicable. The Pregnancy Discrimination Act (PDA) prohibits employers with 15 or more employees from discriminating against female employees or job applicants based on pregnancy, childbirth or related medical conditions. As a result, employers may not refuse to hire an applicant because she discloses she is pregnant or fire an employee because she is pregnant. In the leave context, employers must look at requests for maternity leave or leave before the birth of a child for medical conditions under the same terms and conditions it applies to employees with other types of medical conditions.
Also, when disciplining or terminating pregnant employees or employees out on job protected FMLA leave, employers must make sure that their decision to discipline or terminate is not motivated by the employee's pregnancy or maternity leave. Documentation backing up the reason for discipline or termination is critical.
Trends: Some states, such as California and New Jersey, provide paid leave benefits to employees out on maternity leave.
The Pregnant Workers Fairness Act has been introduced in the US Senate. This law, if passed, would supplement the PDA by requiring employers to reasonably accommodate pregnant employees or job applicants, as well as those limited by childbirth or related medical conditions, unless the employer could show that it caused an undue hardship such as a significant difficulty or expense. This is similar to the accommodation requirement under the ADA. Employers would also be prohibited from making an unfavorable employment decision based on pregnancy or the taking of leave for pregnancy-related reasons.
A number of states and cities, including California, Maryland, Minnesota, New Jersey, New York City, Philadelphia and West Virginia, have taken matters into their own hands by passing laws requiring employers to reasonably accommodate pregnant employees.
Author: Melissa S. Burdorf, JD, Legal Editor
In-depth review of the spectrum of Pennsylvania employment law requirements HR must follow in respect to FMLA.
The Maternity Leave handbook statement has been removed from the Ohio handbook.
Washington employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year that seek to inform employees about their rights and obligations under the Washington Family and Medical Leave Act and to demonstrate compliance with the law should consider including this model policy statement in their handbook.
Washington employers should consider including this model policy statement in their handbook.
District of Columbia employers with 20 or more employees during 20 or more calendar workweeks in either the current or preceding year should consider including this model policy statement in their handbook.
District of Columbia employers with 50 or more employees during 20 or more calendar workweeks in either the current or preceding year should consider including this model policy statement in their handbook.
Maine employers with 15 or more employees at one location in Maine and 50 or more employees overall should consider including this model policy statement in their handbook.
Maine employers with 15 or more employees at one location in Maine but fewer than 50 employees overall should consider including this model policy statement in their handbook.
The EEOC has updated its Enforcement Guidance on pregnancy discrimination in the wake of the US Supreme Court's Young v. UPS decision.
An employer may use this policy to communicate family and medical leave rights and responsibilities when the employer is not subject to the FMLA. Employers can choose to implement a family and medical leave policy that is in line with the FMLA or state equivalent, and may modify it to meet the employer's needs.
HR guidance on legal obligations related to employee pregnancy and maternity.