Top Ten Tips Disclaimer
Employers have many questions regarding employee pregnancy issues. Here is an outline of the basic things to keep in mind about the rights of a pregnant employee:
Fewer than 15 employees:
If a business has fewer than 15 employees (counting anyone who works for the business, performing services for pay, for each working day in each of twenty or more calendar weeks in the current or preceding calendar year), it is not covered by any employment law relating to pregnancy or disability, and the business would be free to handle the situation in any way it deems appropriate. Of course, a business not covered by such laws would still want to treat its employees as fairly and consistently as possible, if for no other reason than to minimize complaints, unnecessary turnover, and the risk of unfavorable publicity. Businesses with 15 or more employees should see the comments below.
15 or more employees:
If the business has 15 or more employees, it is covered by state and federal pregnancy and disability discrimination laws, which require non-discriminatory treatment of pregnant employees and reasonable accommodation for employees with disabilities. Disability laws can come into play for a pregnant employee if the pregnancy becomes complicated and results in something that can turn into a disability, such as gestational diabetes.
From a practical standpoint, avoiding liability for pregnancy discrimination involves ensuring that employees are not adversely treated due to pregnancy, making reasonable accommodation for pregnant employees, and extending the same benefits and treatment toward them as the company extends to other employees who have medical conditions. Pregnant employees do not need to be treated any better than other employees with medical conditions, but need to be treated at least as favorably.
If an employee claims that she cannot do certain duties due to being pregnant, the company has the right to require her to medically document such claims. Have the employee obtain a statement from her doctor showing clearly which duties of her job she can perform, which duties she cannot perform, and what accommodations might be necessary to enable the employee to continue working. Documentation requirements like this should be applied consistently and fairly to anyone who asserts a medical difficulty in doing their job functions.
Reasonable accommodation is something that the company can do, without undue hardship to the business, that allows the employee to work and manage any periods of leave.
Among other things, reasonable accommodation could include things such as redesigning job duties temporarily, furnishing health or safety aids, and extending a reasonable amount of maternity leave.
Regarding job duties for pregnant employees, it is important to act on the basis of sound medical information, rather than company officials' own ideas about what might be too risky for a pregnant woman to do. In UAW, et al, v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196 (1991), a case involving a policy prohibiting women of child-bearing age from working in positions that would potentially expose them to lead in the battery manufacturing process, the Supreme Court ruled that the risk of harm to a pregnant employee or her fetus is not a legal basis for denying a job to a woman and commented: "If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best. Moreover, the incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender." Thus, acting on the basis of medical information, obtaining informed consent from the pregnant employee for her performance of potentially risky job duties, and maintaining a safe workplace would generally be the best way to proceed.
Concerning the length of maternity leave, there is no hard-and-fast rule in the statute or in regulations. However, based upon EEOC guidance and court cases, it would appear that at a minimum, a covered employer can be expected to allow at least two weeks of unpaid or paid leave for pregnant employees. Paid leave is not required unless it is promised in a written policy or agreement, and unless others who miss work for medical reasons are allowed to use available paid leave for medical absences. The best practice is usually to allow pregnant employees to apply their available paid leave as long as it lasts.
The larger the company is, the longer the time is that the EEOC or a court might consider reasonable in terms of duration of leave. Employers at the lower end of coverage, i.e., between 15 and 25 employees or so, can usually get away with two weeks or so, but larger companies might be expected to increase the time somewhat. In such situations, a neutral absence control policy can help. A basic sample of such a policy appears at the following link:
Another thing to keep in mind is the issue of notice. In this case, that would be notice of her intent to return to work. Some companies, but not all, have policies requiring employees on extended leaves of absence to check in at stated intervals regarding their return-to-work status. If a company has such a policy, and the employee has not adhered to it, then the company would likely want to see what the policy says about employees who fail to keep in touch as the policy requires.
Pregnancy leave can be related to other forms of medical leave, such as FMLA (for employers with 50 or more employees) and disability leave. Generally speaking, if two or more leave-related laws apply to a particular employee, the company should determine which law affords the greatest degree of protection for the employee and apply that result. Concerning the way that various medical leave-related laws fit together, see the following topic in this book: http://www.twc.state.tx.us/news/efte/medical_leave_laws.html.
Benefit continuation during maternity leave should be handled the same as it is for anyone else who goes on leave for other reasons.
If the company eventually arrives at the point where it can no longer readily accommodate the absence, and assuming that such action would not violate company policy or any individual employment agreement with the employee, it would be a good idea to advise the employee in writing that unless she is able to return to her duties by a stated deadline, the company will not be able to guarantee that it can continue to hold her job open and may have to replace her.
If the employee is ultimately laid off due to medical unavailability for work, and she files an unemployment claim, the company might consider responding to the claim with an explanation that the layoff was due to the claimant's medical unavailability for work, i.e., it was a medical work separation, and that the employer's account should be protected from chargeback of any benefits the claimant might receive. See the section headed "Medical Separations" in the following article in this book:
In the event of a layoff for such a reason, try to end the work relationship on as positive a note as possible. Let the employee know that she is welcome to check back with the company once she is able to return to work, and that the company will be glad to consider her for any vacancy that might exist at the time. The company does not promise her a job thereby, but it sounds positive and will help dispel any notion that the company does not want her back.
Since any kind of discrimination claim can be a very serious matter, it could be well worth investing in an hour or two of an employment law attorney's time regarding the company's position in such matters, prior to taking any action with respect to a pregnant employee, just to help ensure that the company is not missing some kind of important issue.
The EEOC's official fact sheet on pregnancy discrimination law is at the following link:
The main EEOC regulation dealing with pregnancy and maternity leave is here:
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