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Maternity/parental leave: FAQs

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in Human Resources,Maternity Leave Laws

Maternity leave becomes an issue under the legal proscriptions of both the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA).

The PDA requires employers to treat employees desiring maternity leave in the same way as they treat those workers out on short-term disability. And the FMLA has a boatload of demands employers must adhere to when it comes to leave for maternity and childbirth.

1. Can an employer pre-establish a mandatory beginning date and/or length of time for an employee's maternity leave?

No. Under the PDA, an employer may not pre-establish either of the following:

  • A mandatory beginning date for maternity leave (e.g., beginning of third trimester). An employer cannot force an employee to take time off for pregnancy or a pregnancy-related condition, unless the condition prevents the employee from being able to do her job.
  • A length of time for maternity leave (e.g., at least four weeks after the birth). A woman who has given birth must be allowed to return to her job when she can perform it if other employees who have been absent because of a temporary disability are allowed to return to work as soon as they are able. If a doctor's statement is required to establish return dates for pregnant workers, a similar statement must be required for employees on disability leave for other reasons.
2. Is it a violation of the PDA to eliminate the job of a pregnant employee or an employee out on maternity leave during a companywide reduction-in-force?

There is nothing in the PDA that requires employers to give special consideration to pregnant employees during a downsizing. Job elimination or consolidation that would have occurred whether or not an employee was on maternity leave does not violate pregnancy laws. However, an employer must be able to prove that its decisions are based on business necessity and not on an employee's pregnancy.

3. Can a pregnant employee take FMLA leave for morning sickness?

There are times when employees are covered by the FMLA even if they do not receive treatment from a health care provider or the absence doesn't last for more than three days. One example is a pregnant employee who is unable to report to work because of severe morning sickness.

4. Can infertility treatments constitute an FMLA-qualifying event?

Could be. If there is any period of incapacity or treatment for such incapacity that jibes with the FMLA definition, it may be considered a serious health condition. For example, surgery to treat an underlying condition (such as endometriosis); bed rest to prevent miscarriage or other complications; treatment for depression brought on by infertility if the depression is debilitating enough that the employee cannot work; tests necessary to diagnose a potential serious health condition; or other invasive treatments whose side effects may debilitate the employee may be considered qualifying infertility treatments. Many women who are undergoing infertility treatments may only require intermittent leave from work to seek treatment. Don't forget that infertility also affects males and may be entitled to FMLA leave.

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