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Pregnant employees: Where can you draw the line?

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in Employee Benefits Program,Employment Law,Firing,FMLA Guidelines,Human Resources,Maternity Leave Laws

by Michael Aleo, The Bernabei Law Firm, PLLC

Pregnant employees and applicants are protected by two federal employment laws:

1. The Pregnancy Discrimination Act (PDA). The PDA prohibits organizations from discriminating based on pregnancy, childbirth or related medical conditions. It covers employers with 15 or more employees.

Federal courts have interpreted the PDA to require employers to treat pregnancy similarly to other temporary medical conditions or disabilities.

The PDA requires your organization to provide employees affected by pregnancy the same benefits provided to similarly situated employees, including insurance, bonuses and other fringe benefits.

To make a successful pregnancy discrimination claim, employees must show:

  • They were affected by pregnancy, childbirth or related conditions.
  • They were qualified for the job.
  • They were subjected to some form of adverse employment action (firing, demotion, pay cut, etc.).
  • There was a correlation between the pregnancy-related condition and the adverse employment action.
  • The employer wouldn’t have taken the adverse action against the employee if she’d been affected by a medical condition other than pregnancy.

2. The FMLA. This 1993 law entitles qualified employees to up to 12 weeks’ unpaid leave for the birth or adoption of a child. It covers employers with 50 or more employees in a 75-mile radius. To qualify for leave under the FMLA, employees must have worked for the employer for at least one year and have worked at least 1,250 hours in the year before the leave began.

Key point: FMLA and PDA protections also apply to expectant fathers.

Employers can’t discriminate in promotions, benefits, pay or any employment condition against men or women because of their likelihood to use FMLA leave. Similarly, employers may not retaliate against employees who have used or requested FMLA leave.

What's new

PDA protections likely extend to women who choose to have, or consider having, abortions. At this point, however, employees undergoing fertility treatment, infertility or hysterectomy procedures are not protected by the PDA, but may be under the FMLA and the ADA.

Employers generally can’t block women from working because certain work conditions may pose potential hazards either to their fertility or the health of their unborn children. Employers also are not required to afford pregnant employees leave from employment to temporarily avoid hazardous conditions.

How to comply

Employers should remember that the PDA provides the minimum protections that employers must afford to employees. State laws and employers’ policies may provide benefits in excess of those provided to employees suffering from similar medical conditions or temporary disabilities. Check the laws in your state to ensure you are in compliance.

When disciplining a pregnant employee, employers must make sure the pregnancy is not affecting the decision.

For example, if an employer would typically fire an employee who was regularly late to work due to pain associated with a temporary medical condition, the employer may terminate an employee who is excessively tardy due to morning sickness related to her pregnancy. However, if, under a disability policy or established company practice, you’d typically afford such employees some leeway, then you must do the same for the pregnant employee suffering from morning sickness.

Employers should include a nondiscrimination policy in their handbook that includes a pledge not to discriminate against employees because of pregnancy. In all decisions concerning pregnant employees, employers should ask themselves what decision they would make if they were judging a nonpregnant candidate with the same qualifications.

Pregnancy and FMLA

Pregnancy is considered a serious medical condition under the FMLA.

Pregnant women can start FMLA leave when they are unable to perform the functions of their job. Expectant fathers may take leave when it is necessary to care for the expectant mother, or after the birth for purposes of bonding with the new child. In either case, all leave must be completed within one year after the child’s birth.

Pregnancy and ADA

The ADA doesn’t consider pregnancy a “disability” because of the relatively short and definite duration of the limitation placed on a woman’s major life activities. However, a court may consider affording the ADA’s protections if complications with a pregnancy create a substantial likelihood of long-term impairment.

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Michael Aleo is an associate at The Bernabei Law Firm, PLLC. He can be reached at (202) 745-1942 (ext. 238) or via e-mail at Aleo@bernabeipllc.com.

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