The best way to prevent pregnancy discrimination is to understand the laws which can be implicated. Such laws include the Family and Medical Leave Act, Pregnancy Discrimination Act, the Americans with Disabilities Act Amendments Act and the Affordable Care Act. Unfortunately, understanding the intricacies of each of these laws can be difficult and confusing, so let’s review each in an effort to provide clarity.
1. Family and Medical Leave Act (FMLA)
Not all employers are required to provide FMLA benefits, and not all employees will be entitled to such benefits.
- Only “covered employers” must provide FMLA benefits. A “covered employer” may be private-sector employers with 50 or more employees, public agencies and public or private elementary or secondary schools.
- Eligible employees are those who have worked for the employer, for at least 12 months and for at least 1,250 hours in the past 12 months.
Employees are entitled to FMLA leave for the birth of a son or daughter and also for serious health conditions that make the employee unable to perform the essential functions of his or her job.
- This includes leave for the birth of a child, prenatal care, incapacity related to pregnancy (such as morning sickness) and any serious health conditions that the mother might have following childbirth.
When an employee takes FMLA leave, the employer must maintain the employee’s health benefits.
When an employee returns from FMLA leave, the employer generally is required to restore the employee to the same job that was held when the leave began, or to an equivalent job.
FMLA regulations allow employers to run paid leave concurrently with FMLA leave.
- This means that employers can require employees to substitute accrued paid leave for unpaid FMLA leave. This, however, will not increase the total amount of leave allowed.
- This also applies to short-term disability benefits.
The amount of leave allowed under FMLA does not have to be used all at once and can be used during pregnancy, after birth or spread across both time periods.
- An employee may take leave by reducing normal daily or weekly hours.
Employers must provide notice of FMLA eligibility either orally or in writing within five days of the employee’s request for leave or when the employer becomes aware that the employee’s leave may be for FMLA-qualifying reasons.
Some states may have broader maternity-leave laws that override the FMLA. These state laws will be discussed in a later post.
2. Pregnancy Discrimination Act (PDA)
The PDA states that discrimination based on pregnancy, childbirth or related medical conditions will constitute unlawful sex discrimination under Title VII of the Civil Rights Act.
The PDA does not require employers to provide any leave to pregnant workers, except to the extent the employer provides leave to other individuals suffering from temporary disabilities.
Lactation is a pregnancy-related condition protected under the PDA and denial of an appropriate location to express breast milk could amount to pregnancy discrimination.
The PDA has been interpreted as not requiring reasonable accommodations to pregnant women, unless the employer also provides such accommodation to nonpregnant employees with temporary conditions (accommodations may, however, be required under the American’s with Disabilities Act Amendments Act.
3. Americans with Disabilities Act Amendments Act (ADAAA)
The ADAAA applies to employers with 15 or more employees, and does not set any minimum service requirements for employees to qualify and the ADAAA is implicated only when a person is discriminated against because he or she is disabled.
- A “disability” is a physical or mental impairment which substantially limits a major life activity. This can include short-term impairments, which are substantially limiting.
A normal pregnancy will not constitute a disability, but pregnancy-related medical conditions may rise to the level of a disability under the ADAAA. (See our previous post, “EEOC Cracks Down on Pregnancy Discrimination,” for examples of pregnancy-related medical conditions that have been considered a disability.)
A pregnant employee may be entitled to an accommodation under the ADAAA for pregnancy-related medical conditions. This may include things such as altered break and work schedules, or elimination of marginal job functions.
- Employers may not reduce the employee’s pay because she needs an accommodation to do her regular job.
There is no specific time limit on the amount of leave that may be taken by the employee or the length of accommodations if no undue hardship exists for the employer. The length of an accommodation or the period of time off must only be reasonable.
- Courts have held that anywhere from six months to a year can be considered a reasonable period of time off from work.
Employers will not be required to hold the employee’s job open while the disabled employee is on leave, if doing so would create a hardship for the employer.
4. Affordable Care Act (ACA)
Generally, the ACA requires employers with at least 50 full-time employees to offer employees minimum essential health coverage that is affordable, or to make an employer shared-responsibility payment to the IRS. Please note that employers will face hefty fines for not providing coverage that meets the minimum requirements.
Employees cannot be denied health coverage or charged more because they are pregnant. This applies whether employees get their insurance through their employer or if they buy it on their own.
The ACA explicitly identifies pregnancy, maternity and newborn care as part of the essential benefits package that must be offered by plans.
- Most plans must cover preventative services for pregnant women or women who may become pregnant, without charging a copayment or coinsurance.
- This includes things such as anemia screening, gestational diabetes screening or folic acid supplements.
- Employers’ health insurance plans also must provide breastfeeding support and counseling, and equipment for the duration of breastfeeding.
The ACA also requires that employers provide time and space for new mothers to express breast milk until the child turns 1 year old.
- This provision overlaps with the PDA, which requires employees to be compensated for time that is used to pump or breastfeed if other employees are compensated for their break times.
Conclusion
Many laws are implicated when it comes to pregnant employees and most charges of pregnancy discrimination today result from seemingly neutral policies that adversely impact pregnant workers. It is important to understand that:
- pregnancy discrimination can happen in all aspects of employment
- some pregnant employees may be entitled to certain accommodations or specified leave
- an employer’s policies pertaining to nonpregnant employees can impact how pregnant employees are treated
- all pregnant employees may not be treated in the same manner
These laws, while all very different, overlap in many areas, and understanding the various parts of each is vital for employers.
For more about the EEOC’s current focus on pregnancy-related limitations and to address potential confusion with pregnancy related laws, be sure to read EEOC Cracks Down on Pregnancy Discrimination and for more details about terms associated with leave taken for pregnancy or childbirth-related purposes, check out “Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave.”
Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.
