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Pregnancy and Maternity: Avoid Costly Discrimination Claims

Women comprised 46.8 percent of the total U.S. labor force in 2010, according to the U.S. Department of Labor. Many of these working women will become pregnant at least once during their careers. Improper handling of pregnancy, pregnancy-related disability and maternity leave can lead to discrimination lawsuits. Do you know the laws that apply? 

The Pregnancy Discrimination Act prohibits employment discrimination on the basis of pregnancy, childbirth or related medical conditions. The law affects employers with 15 or more employees, including state and local governments, as well as employment agencies, labor organizations and the federal government. 

The law requires employers to treat women who are pregnant or affected by pregnancy-related conditions in the same manner as other applicants or employees with similar abilities or limitations. An employer cannot refuse to hire a pregnant woman because of pregnancy,  a pregnancy-related condition, or the prejudices of co-workers, clients or customers. Pregnant employees must be permitted to work as long as they are able to perform their jobs. An employer also cannot have a rule prohibiting an employee from returning to work for a predetermined length of time after childbirth. 

Handling Pregnancy-Related Disabilities 

If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.

 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 the baby’s birth. However, if an employer requires employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

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.

Maternity Leave 

No federal law requires employers to provide paid maternity leave. The Family and Medical Leave Act (FMLA) covers employees at companies with 50 or more workers and applies to employees who have been with the employer for at least one year and have worked for at least 1,250 hours over the course of that previous year. The FMLA allows eligible employees to take up to 12 weeks of unpaid leave for the birth and care of their child, or for their (or a close family member’s) serious health conditions. It also guarantees that the employee’s job, or an equivalent job, will be available if she returns to work immediately after her leave is up.

Some states have their own maternity leave laws. Generally, where a state provides maternity leave, employees can “leave stack,” or combine leave under different programs. Eight states (California, Connecticut, Louisiana, New Jersey, Oregon, Rhode Island, Tennessee and Washington) and the District of Columbia require employers to offer maternity leave.

No state or federal law requires paid maternity leave; however, Connecticut, Hawaii, Washington and Wisconsin allow employees to use accrued sick leave to care for a healthy new baby. Several other states, including California, Hawaii, New Jersey, New York and Rhode Island provide paid leave for women temporarily disabled due to pregnancy or childbirth through short-term disability programs. California’s law also allows women with normal childbirths to collect partial payment. Most states require employers to continue benefits during leave; not every state requires employers to guarantee an employee’s job will be available upon her return. 

Health Insurance and Other Benefits

Employer-provided health insurance plans must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Your plan must pay pregnancy-related expenses exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charges. Health plans cannot impose additional, increased or larger deductibles on pregnancy-related expenses. 

The FMLA requires employers to continue health insurance and other benefits for employees as if they were still actively working; employees on leave still accrue seniority. Although the FMLA guarantees your employees’ right to coverage while they are out on leave, once they exhaust FMLA leave, your group health, life or disability plan might not consider them active employees for the purposes of coverage. If your organization offers maternity or disability leave that is longer than required by the FMLA, check with your carrier to see whether it will consider covered employees still active after they exhaust FMLA leave. If the carrier does not, your employee may be able to continue health coverage through COBRA. If your organization’s group life policy includes a waiver of premium provision, an employee on leave may be able to continue coverage if her leave was caused by a disability related to pregnancy (or any other cause).  

Employment-related laws are complex and constantly changing. We can review your benefit plans and human resource policies to check for any possible compliance gaps. For information, please contact us.  

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