It’s “What’s Up? Wednesday”. Time to talk about PREGNANCY LEAVE . . .

You asked:  “We are a small company (less than 40 employees) doing business in Pennsylvania. We have an employee that will soon need maternity leave. What are the laws that pertain to maternity leave?”

Laura answers:

The first law that most employers must consider when planning for a maternity leave of an employee is the Family and Medical Leave Act (FMLA). This act provides employees up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for serious health conditions which include, among other things, the birth and care of an eligible employee’s child. It also requires that employee’s group health benefits be maintained during the leave.

WHO IS COVERED UNDER FMLA?

Covered Employers (must meet at least one of the criteria)

Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer.

Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs.

Public or private elementary or secondary school, regardless of the number of employees it employs.

Covered Employees (must meet all criteria)

Works for a covered employer;

Has worked for the employer for at least 12 months;

Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and

Works at a location where the employer has at least 50 employees within 75 miles.

For smaller companies, like yours, that are not obligated under FMLA, you must consider your own company’s leave of absence policy.

If you allow for personal leaves of absence, you would follow that policy for your pregnant employee. This is the key: She must be treated like any other employee with a serious illness would be treated.

Regarding specific laws: You may have heard of the Pregnancy Discrimination Act (PDA). Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same. It forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

Regarding leave for a pregnant employee: When determining her ability to work, use whatever procedure you use to screen all other employees for fitness for duty. For example, if you require employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, you may require her to submit such statements.

If she is temporarily unable to perform her job due to pregnancy, you must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay. [The EEOC adds this on their website: “ . . .  impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA).  An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense)].”

Regarding length of leave: Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, you may not require her to remain on leave until the baby’s birth. If she is able to perform her job duties safely, she must not be kept off duty simply because she is pregnant. You also may not establish a predetermined length of leave following childbirth. Whatever leave you grant your pregnant employee should be in keeping with your sick or disability leave policy. In other words, you must hold open her job the same length of time jobs are held open for other employees on sick or disability leave.

For more information about FMLA, leaves of absence, or other Human Resource issues, please send your questions to hrcounselorscorner@eastcoastrm.com. If you’d like email notification of all blog updates, just click the follow button at the bottom of the window.

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