This Tip addresses the questions you might have when an employee tells you they are pregnant, or are a new parent, and provides best practices to help you handle pregnancy and new-parenthood in the workplace.
Frequently Asked Questions.
Q: Is pregnancy-related leave paid or unpaid?
A: Federal and state family and medical leave laws typically require unpaid leave only, but employers may allow employees to substitute accrued paid time off for some or all of their unpaid leave. There are a handful of states that provide compensation to women who have to take leave due to a pregnancy-related disability through state disability insurance. These states include California, Hawaii, New Jersey, New York, and Rhode Island.
Q: We just interviewed an applicant who is pregnant. Can my company refuse to hire her
because we are concerned about the impact on the company?
A: No, the Pregnancy Discrimination Act (PDA) prohibits an employer from refusing to hire an
applicant because of her pregnancy-related condition as long as she is able to perform the
essential functions of the job. The law also forbids pregnancy-related discrimination when it
comes to any other aspect of employment, including pay, job assignments, promotions, layoffs,
training, fringe benefits, termination, and any other term or condition of employment. Note:
Some states also offer protection from discrimination on the basis of family status.
Q: Can I transfer a client-facing employee who is pregnant once she starts to show? Can I
require pregnant employees to take leave at a certain point in their pregnancies?
A: An involuntary transfer because of an employee's pregnancy may violate federal and state
non-discrimination laws. 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, her employer may not require her to remain on leave until she
gives birth. Nor may an employer have a rule that requires the employee to take leave once she
reaches a certain point in her pregnancy. Additionally, employers may not prohibit an employee
from returning to work for a predetermined length of time after childbirth.
Q: Am I required to provide reasonable accommodations to pregnant employees?
A: It depends on several factors, including the state and whether the employee's condition
would qualify as a disability under the Americans with Disabilities Act (ADA), as amended by the
ADA Amendments Act (ADAAA).
ADA
A pregnancy in itself is not considered a disability under federal law, but some impairment
resulting from pregnancy (for example, gestational diabetes) may be considered qualified
disabilities under the ADA, as amended by the ADAAA. In these situations, employers may be
required to provide a reasonable accommodation for a disability related to pregnancy (such as
modifications that enable an employee to perform her job or a leave of absence to recover),
absent undue hardship (significant difficulty or expense).
State Law
Some states have enacted laws that require employers to provide reasonable accommodations
for pregnancy and childbirth. For example, Maryland, New Jersey and New York have
enacted laws that requires employers to provide reasonable accommodations to women who
are affected by pregnancy or childbirth, (without showing disability related to pregnancy), unless
the employer can demonstrate that it would impose an undue hardship. Reasonable
accommodations may include, but are not necessarily limited to, bathroom breaks, breaks for
increased water intake, periodic rest, and assistance with manual labor, job restructuring or
modified work schedules, and temporary transfers to less strenuous or hazardous work.
In the absence of a federal or state requirement, it is a best practice to provide reasonable
accommodations for pregnancy and childbirth. Accommodations may include those mentioned
above, as well as allowing flexible work schedules and telecommuting.
Visit the Job Accommodation Network (JAN) website (askjan.org) for more information on workplace accommodations.
Q: An employee asked for break time to express breast milk for her newborn. Am I
required to provide breaks for this purpose? Am I required to provide a space as well?
A: Under federal law, employers must provide nursing mothers with reasonable break time to
express breast milk at work for up to one year after giving birth. Breaks must be provided each
time the employee has a need to express the milk. Additionally, a place, other than a bathroom,
that is shielded from view and free from intrusion from coworkers and the public must be
provided. Affording privacy may be as simple as installing a lock on the new mother's office
door, or designating a private space in which new mothers may express milk for their newborns.
Communicate with the new mother to identify her needs in this regard, and prepare to
accommodate within reason.
Note: Many states (Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Minnesota, Maine, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Washing, and D.C.), have their own “lactation accommodation” laws, some of which offer additional protections for nursing mothers, such as extending a mother's right to pump into her child's toddler years. In Colorado, for example, a nursing mother has a right to express milk in the workplace for up to 2 years after a child's birth, and in Maine and New York, a nursing mother is entitled to this right for up to 3 years after the child is born.
Q: What are some strategies for managing workload when an employee is on leave?
A: Employers have several options when an employee is on leave, such as transferring some job responsibilities to other employees, authorizing those employees to work overtime, and hiring temporary help. Once notified of the employee's intention to take leave, the employer should prioritize job duties and determine how best to handle them.
Q: We planned on giving a promotion to an employee who just informed us that she is pregnant. The position would require more travel and I assume the employee wouldn't want to travel more, especially after the birth of the child. Can I give the promotion to someone else?
A: The PDA prohibits employers from denying a promotion to an employee because of pregnancy or childbirth. Employers should never assume that pregnant employees, or new parents will not be interested in positions that require significant travel or working long or unusual hours.
Q: What are an employer's responsibilities when the employee reports that she is ready to return to work after childbirth? What if I hired somebody to handle the workload during the employee's absence?
A: In general, employees should be reinstated promptly upon indicating they are able to return to work. The employer may not subject an employee to more rigorous return-to-work requirements than it does other employees with temporary medical conditions. If the employee is covered by federal and/or a state leave law, she generally will have specific reinstatement rights, so be sure your return-to-work practices comply. In the absence of specific reinstatement requirement, employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. If an employer hires temporary help to assist with the workload while an employee is on leave, the employer should be upfront with the temporary hire that the job is temporary.
Q: My employee is not pregnant, but is adopting a baby. Do I have to provide the same types of accommodations for an adoption as I would for the birth of a child?
A: Yes. Just as the FMLA provides job protected leave to employees to care for their newborn, the FMLA also provides parents with the right to job protected leave related to the placement of a child for adoption or foster care. Similarly, many state family leave laws that provide leave to care for a newborn, specifically address adoption of a child as a reason for which that leave may be also used. For example, California, Connecticut, Hawaii, Maine, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin and D.C., all provide under their respective family leave laws that an employee may take job protected leave related