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How to legally manage pregnancy and maternity leaves

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Maternity Leave Laws

When an employee announces she’s pregnant, it’s important for HR and supervisors to know what they must do—and what they can’t do (or say) under federal anti-discrimination and leave laws. (For details about individual state maternity leave laws, go to www.ncsl.org/programs/employ/pregnancy leave statutes.htm.)

No federal law requires you to provide paid maternity leave. Most employers must comply with the Pregnancy Discrimination Act (PDA) and the FMLA. The ADA may apply if pregnancy complications arise.

PDA: pregnancy discrimination

The PDA prohibits discrimination against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” It covers employers with 15 or more workers. The PDA says a woman can’t be denied a job because she’s pregnant or had an abortion. You can’t fire her because of her pregnancy or force her to go on leave as long as she’s physically capable of performing her job.

In short, the law requires you to treat pregnant employees the same as other employees on the basis of their ability or inability to work. So you must provide the same accommodations—such as light-duty work—for expectant workers that you do for other employees unable to perform their regular duties.

In addition, you must provide the same leave and disability benefits available to other employees who are granted leave for temporary disabilities.

FMLA leave: When does it apply?

When an employee becomes pregnant, consider her right to take FMLA leave. Eligible employees can take up to 12 weeks of unpaid FMLA leave for the birth, adoption or foster care of a child, or to care for their own—or a family member’s—“serious condition.”

Both mothers and fathers can take FMLA leave anytime in the first 12 months after a child’s arrival.

What’s a “serious condition”? Keep in mind that employees can also use their allowable FMLA leave if they suffer complications during pregnancy that constitute a serious condition. The FMLA defines a “serious health condition” as “an illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”

Advice: When it comes to a pregnancy, approve any absences that are even remotely related to the pregnancy as FMLA-covered time off.

ADA: reasonable accommodations

A normal pregnancy is not considered a disability under the ADA. An ADA disability is “a physical or mental impairment that substantially limits one or more major life activities.”

But if a woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and, therefore, entitled to a reasonable accommodation.

So if a new mother still is unable to return to work after exhausting her 12 weeks of FMLA leave, you should evaluate her condition under the ADA and state laws to determine whether additional time off is a reasonable accommodation for her.

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