Women are working longer into their pregnancies and returning sooner to work after the baby is born. In the meantime, the Equal Employment Opportunity Commission (“EEOC”) has identified pregnancy discrimination as a matter of great concern.
The key Federal statute is the Pregnancy Discrimination Act (“PDA”). The PDA prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. It requires employers to treat pregnancy the same as any other temporary disability. Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions.
- Under the PDA, it is unlawful to:
- Refuse to hire a woman simply because she is pregnant.
- Fire a woman simply because she is pregnant.
- Force a pregnant employee to leave work if she is ready, willing, and able to perform her job.
- Dtop the accrued seniority of an employee who has taken a leave to give birth or have an abortion (unless seniority does not accrue to other temporary disabled workers under similar circumstances).
For larger (over 50) employees, pregnancy is covered by the Family Medical Leave Act (“FMLA”). Under the FMLA, eligible employees are entitled to FMLA leave for pregnancy or birth of a child. Both the mother and father are entitled to FMLA leave for the birth of their child. Additionally, both the mother and father are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of birth.
Pregnancy can create medical issues for the mother. A mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work.
An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees.
The FMLA comes into play in another way. An employee is entitled to FMLA leave to care for a child (which includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis), who is age 18 or older who is “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. However, leave to care for an adult daughter, with a normal pregnancy is not covered.
Perhaps at a later date, we can discuss other pregnancy-related issues. For now, employers must treat the rights of pregnant employees as a high priority.
If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.