Beware informal policy on returning after pregnancy

Many employers try to simplify medical leave policies by adopting the same eligibility requirements set by the FMLA. That is, they limit eligibility for longer periods of medical leave to those who also meet the FMLA requirements. Then they run the two concurrently. That way, the only eligible employees are those who have worked for the company for more than one year (not necessarily all in one stretch) and more than 1,250 hours in the last year.

But those same employers sometimes make exceptions for select employees, especially if they are seen as too valuable to lose to a short medical leave. Watch out if that’s your informal practice. Denying that flexibility to pregnant employees probably violates the federal Pregnancy Discrimination Act (PDA).

Recent case: Alisa Meyer had worked for Maxim HealthCare Services for about three months when she asked to take time off for maternity leave. But the company, which allowed medical leave only for employees who were eligible for FMLA leave, denied her request.

The reason: At the time she would need the leave, she would not have worked for the company for more than one year.

Meyer gave birth and didn’t return. Instead, she sued. Now the federal judge considering her case has ordered a trial, based in part on company testimony that it sometimes allowed other employees who weren’t eligible for the FMLA to return from leave that had been formally denied.

The court reasoned that the PDA prohibits treating pregnant employees differently from other temporarily disabled employees. The informal policy indicated others might have been treated more favorably. (Meyer v. Maxim HealthCare Services, No. 1:06-CV-00453, SD OH, 2007)

Final note: Ohio employers may have to comply with the Ohio Civil Rights Commission’s rules on pregnancy, too. The agency is working on updating its regulations to guarantee 12 weeks’ leave for pregnant employees. Ohio Employment Law Editor Jan Hensel recently testified before the committee, recommending against the proposal to mandate maternity leave. You can read her testimony at www.ohiochamber.com/governmental/pdfs/2007_0~1.PDF.