Is your employee handbook clear on exactly what constitutes and how long it lasts? If you plan to permit just the 12 weeks allowed for pregnancy and childbirth under the , spell that out.
Don’t refer to maternity leave separately and then provide a different week or month count. If you don’t spell out the details and the limits, you may run into trouble if you try to discharge the new mother when her 12 weeks have run out, but she hasn’t returned to work.
Why? Because the (PDA) prohibits discrimination against pregnant employees. If you terminate that employee because her absence interfered with business, she can sue you for discriminating against her because of her pregnancy—even if she has used up her 12-week FMLA entitlement.
Recent case: Stacy Joy worked as a receptionist for a company that makes kitchen sinks and tables. When she became pregnant, she developed complications—high blood pressure and pre-term labor. She had to take time off before the birth to prevent a premature delivery.
Before going on leave, she discussed maternity leave with her supervisor. The boss explained that the handbook allowed her to take six weeks for a normal birth, and eight weeks for a Caesarean delivery. Nothing in the handbook indicated that the leave would run concurrent with , or that there was a total limit of 12 weeks off.
Joy gave birth to a boy via Caesarean section and received a nice fruit basket from the company. Then, three weeks after the birth, she got a letter explaining that her absence for more than 12 total weeks had caused a hardship and that she had been replaced.
Joy sued under the PDA, alleging the company terminated her for being pregnant. The company argued she was only entitled to 12 weeks total, and that the handbook description of six or eight weeks of maternity leave did not mean she could take off more than 12 weeks.
The court said the case should go to a jury trial. The FMLA may limit time off to 12 weeks, but the PDA covers regardless of timing and makes it illegal to fire someone for having been pregnant. The court said a jury should decide whether the company was motivated by discriminatory intent. (Joy v. Kimplex, No. 06-CV-1990, ED NY, 2008)
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