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Pregnant Employees: Answers to 7 Questions on Hiring and Employment Status

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in FMLA Guidelines,Hiring,HR Management,Human Resources,Maternity Leave Laws

Not many years ago, pregnant women were subject to poor treatment from employers and company insurance plans as well. But the Pregnancy Discrimination Act (PDA), enacted in 1978, prohibits discrimination on the basis of “pregnancy, childbirth and related medical conditions.” The PDA required most employers to make changes in their maternity leave, disability pay and health insurance policies.

The law obligates all employers to treat disabilities caused by pregnancy and related conditions the same as other temporary disabilities under any health, disability, insurance or sick leave plan. The law has important implications for how employers treat pregnant women during the hiring process and after, once they become employees.

The EEOC has published a series of questions and answers that clear up most of the law’s ambiguities. Court decisions have provided answers as well. Here are answers to some of the most common questions employers face:

1. Are you required to hire a woman who, because of her pregnancy, cannot perform only one of a job’s necessary functions?

A. You cannot refuse to hire a pregnant woman who is capable of performing most major job functions. Furthermore, you cannot refuse to hire her just because co-workers, clients or customers prefer that the job not be filled by a pregnant worker.

2. Can a company transfer a pregnant employee to a position of less earning power?

A. No, according to a decision by a U.S. Appeals Court. The decision singles out two pitfalls for companies in regard to pregnant employees:

  • A supervisor’s question to an employee about her family and childbearing plans has no place in hiring, promotion or other employment decisions.
  • An employer may not usually ask a pregnant employee to choose between a lower-level job and resignation.

3. Are you obligated to accommodate an employee who cannot, because of her pregnancy, perform her usual assignments?

A. That depends on the type of accommodation you usually make for other employees who are unable to perform their usual jobs. For example, if you provide other work for an employee who cannot do any lifting because of a bad back, you must make similar arrangements for a pregnant employee.

4. What procedures can you use to force a pregnant employee to take a leave of absence or to stay on the job if she wants to leave?

A. The EEOC says emphatically that you cannot single out pregnant employees for special procedures to determine their ability to continue work. However, you can apply the same requirements that you impose on other employees. So if you usually require employees to obtain a doctor’s note before allowing them to take sick leave and collect benefits, you can impose the same rule on pregnant employees.

5. If a pregnant employee goes on maternity leave because she is ill and then feels better and wants to return to work, can you require her to stay on leave until she gives birth?

A. No. An employee can return to work anytime during her pregnancy as long as she can perform her job.

6. Can you bar a woman from returning to work for a predetermined period after she gives birth?

A. No. You cannot have a rule, for instance, that a woman must wait a month following childbirth before returning to work.

7. Must you keep the job of a pregnant employee open until she is ready to return to work following the birth of her child?

A. Generally, yes. Unless you are informed that she will not return to work, you must keep the job open on the same basis as jobs that are held open for employees on sick leave or disability leave for other reasons.

Adapted from the HR Specialist white paper Pregnant Employees: Answers to Your 20 Toughest Legal Questions, which is available to HR Specialist print, Premium and Premium Plus subscribers.

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