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
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HR guidance on legal obligations related to employee pregnancy and maternity.