Pregnancy and maternity leave: A legal guide and sample policy

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in Discrimination and Harassment,FMLA Guidelines,Hiring,Management Training,Maternity Leave Laws

When an employee announces she’s pregnant, her employer better be able to deliver more than just congratulations. You need legally sound, consistent policies and practices to ward off potential pregnancy complications of your own.

It’s important to know what you must do—and what you can’t do (or say)—under federal anti-discrimination and leave laws. While no federal law requires you to provide paid maternity leave, most employers must comply with the Family and Medical Leave Act (FMLA).

Here’s how best to comply with the FMLA, plus a sample policy you can adapt to your own organization.

The FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave

The Basics: Maternity Leave & FMLA

Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition.

New parents—both mothers and fathers—can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends.

Keep in mind that employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.”

Case in point: Cindy Hiemer said her chronic lung problem was exacerbated by her pregnancy. She asked her employer, Anthem Insurance, for FMLA leave. After she was fired for failing to call in sick, she sued the company, alleging interference with her right to FMLA leave. But Anthem Insurance said her absence wasn’t a serious health condition—Hiemer had testified she couldn’t come to work because she was nauseous and lightheaded. The company said FMLA didn’t cover that sort of problem.

The court disagreed, concluding that—since FMLA regulations say anything related to pregnancy automatically qualifies as a serious health condition—nausea and lightheadedness might be enough. The case now goes to trial, and Hiemer will get a chance to convince a jury her absence was pregnancy-related. (Hiemer v. Anthem Insurance Companies, No. C-1-05-124, SD OH)

Advice: When it comes to a pregnancy, employers may want to follow the safest path: Approve any absences that are even remotely related to the pregnancy as FMLA-covered time off.

12 weeks of unpaid, job-protected leave for “serious health conditions” can be very complicated in the real world. Every day, employers across the country deal with real-world situations and questions such as:
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  • In an emergency, can an employee claim FMLA without informing someone at work?
  • Do I have to count temporary and part-time employees toward the 50-employee minimum?
  • What if my company downsizes during an employee’s FMLA leave? Will I still owe her a job?
  • Does treatment for substance abuse qualify an employee for FMLA leave?
  • Can I require an employee to return to work early if I offer a “light-duty” assignment?
Sample policy: Maternity Leave

Here’s sample policy language that you may want to adapt to your organization’s needs, subject to review by your attorney:

[Your organization] is firmly committed to protecting the rights of expectant mothers and complying with Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Discrimination Act of 1978. [Your organization’s] policy is to treat women affected by pregnancy, childbirth or related medical conditions in the same manner as other employees unable to work because of their physical condition in all employment aspects, including recruitment, hiring, training, promotion and benefits.

Further, [your organization] fully recognizes eligible employees’ rights and responsibilities under the Family and Medical Leave Act, applicable state and local family leave laws, and the Americans with Disabilities Act. Paid leave may be substituted for unpaid maternity leave in accordance with [your organization’s] paid-leave substitution provisions of [your organization’s] FMLA policy.

Pregnant employees may continue to work until they are certified as unable to work by their physician. At that point, pregnant employees are entitled to receive benefits according to [your organization’s] short-term disability insurance plan.

When the employee returns to work, she is entitled to return to the same or equivalent job with no loss of service or other rights or privileges. Should the employee not return to work when released by her physician, she will be considered to have voluntarily terminated her employment with [your organization].

Complex new regulations make complying with the Family and Medical Leave Act harder than ever before. Are you exposing your company to a potential lawsuit? To find out, take this quick FMLA Compliance Self-Audit:

True or False?
True False
You can be held personally liable for violating the FMLA.
If you fail to designate time off for a workers’ comp injury as FMLA leave, an employee could take 12 weeks of additional leave in a single year.
An employee can legally take 24 straight weeks of leave unless your policy forbids it.
A series of mild illnesses can qualify an employee for FMLA leave.

All the statements in the self-audit are undeniably true.

book coverThe FMLA Compliance Guide will help you discover the seven issues you must cover – in writing – with an employee requesting FMLA leave, whether you can legally fire someone who is on FMLA leave, and an amazingly simple strategy that prevents employees from taking 24 weeks of back-to-back leave. The FMLA Compliance Guide is guaranteed to give you concrete answers to your most perplexing FMLA questions.

Get your copy today!



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