Pregnancy and maternity leave: A legal guide and sample policy
When an employee announces she’s pregnant, her employer better be able to deliver more than just congratulations. You need legally sound, consistent policies and practices to ward off potential pregnancy complications of your own.
It’s important to know what you must do—and what you can’t do (or say)—under federal anti-discrimination and leave laws. While no federal law requires you to provide paid maternity leave, most employers must comply with the Family and Medical Leave Act (FMLA).
Here’s how best to comply with the FMLA, plus a sample policy you can adapt to your own organization.
The Basics: Maternity Leave & FMLA
Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition.
New parents—both mothers and fathers—can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends.
Keep in mind that employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.”
Case in point: Cindy Hiemer said her chronic lung problem was exacerbated by her pregnancy. She asked her employer, Anthem Insurance, for FMLA leave. After she was fired for failing to call in sick, she sued the company, alleging interference with her right to FMLA leave. But Anthem Insurance said her absence wasn’t a serious health condition—Hiemer had testified she couldn’t come to work because she was nauseous and lightheaded. The company said FMLA didn’t cover that sort of problem.
The court disagreed, concluding that—since FMLA regulations say anything related to pregnancy automatically qualifies as a serious health condition—nausea and lightheadedness might be enough. The case now goes to trial, and Hiemer will get a chance to convince a jury her absence was pregnancy-related. (Hiemer v. Anthem Insurance Companies, No. C-1-05-124, SD OH)
Advice: When it comes to a pregnancy, employers may want to follow the safest path: Approve any absences that are even remotely related to the pregnancy as FMLA-covered time off.Sample policy: Maternity Leave
Here’s sample policy language that you may want to adapt to your organization’s needs, subject to review by your attorney:
is firmly committed to protecting the rights of expectant mothers and complying with Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Discrimination Act of 1978. policy is to treat women affected by pregnancy, childbirth or related medical conditions in the same manner as other employees unable to work because of their physical condition in all employment aspects, including recruitment, hiring, training, promotion and benefits.
Further, fully recognizes eligible employees’ rights and responsibilities under the Family and Medical Leave Act, applicable state and local family leave laws, and the Americans with Disabilities Act. Paid leave may be substituted for unpaid maternity leave in accordance with paid-leave substitution provisions of FMLA policy.
Pregnant employees may continue to work until they are certified as unable to work by their physician. At that point, pregnant employees are entitled to receive benefits according to short-term disability insurance plan.
When the employee returns to work, she is entitled to return to the same or equivalent job with no loss of service or other rights or privileges. Should the employee not return to work when released by her physician, she will be considered to have voluntarily terminated her employment with .