Megan Markle is Pregnant. Let’s Discuss Family Leave in the US.

Photo by King’s Church International on Unsplash

In case you have not heard, the most popular woman in the world is officially pregnant! With a royal baby on the way, it’s a great time to discuss protections for pregnant women, and what is and is not required of their employers.

First, a quick reminder. You cannot refuse to hire or fire a woman because she is pregnant. That’s a form of illegal discrimination.

What Laws Cover Leave Related to Pregnancy

There are three federal laws that protect pregnant women: The Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) prohibits employers from discriminating based on pregnancy, childbirth, and any related conditions. It applies to employers with 15 or more employees. The act requires employers to “treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as … employees who are similar in their ability or inability to work.”

So, what does this mean for employees once they have given birth. The EEOC explains:

While an employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions (e.g., provide them with the same amount of leave) as others who are similar in their ability or inability to work.

Unfortunately, some employers still do not understand that they have to treat pregnant woman the same as similar employees. For example, this police department in Illinois allegedly forced a pregnant officer to take unpaid leave because it would not allow her to transfer to a “desk job” when she was no longer able to patrol.  The officer also claims that the police department denied her a bullet proof vest that fit. Under the Pregnancy Discrimination Act, the police department should have offered her the same options to go into light duty work (desk work and interviewing witnesses rather than patrolling) that other officers were offered.

An employer in this situation should have offered the employee the accommodation that she requested if it was reasonable. This would have been the same kind of work that was offered to other employees that were on light duty.

Americans with Disabilities Act

Pregnancy, by itself, is not a disability. It may be a disability if it “causes a physical or mental impairment that substantially limits one or more major life activities.” For example, gestational diabetes would be a disability under the ADA (Americans with Disabilities Act) because it is a physical impairment that affects a major life activity: eating. If an employee becomes disabled because of their pregnancy or as a result of childbirth, then maternity leave may be a reasonable accommodation. The employer would have to go through the interactive process to determine how to accommodate the employee with a disability.

Most women that give birth or are pregnant will not qualify for protection under the ADA. Regardless, if a female employee mentions that they are experiencing a problem because they are pregnant, then companies should assess whether the ADA applies by determining if the employee has a disability and if there are any reasonable accommodations available. You can learn more about this process in one of my earlier posts.

Family and Medical Leave Act

Pregnant employees may be entitled to leave under the Family and Medical Leave Act (FMLA). The Department of Labor explains what an employee must do to be eligible:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;

  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and

  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin.

Under the FMLA, employees are allowed to take up to 12 workweeks of leave for the birth and care of their child within 1 year of the child’s birth. The employee does not necessarily need to take the leave right away. Employees are also entitled to leave to treat their own serious condition that makes them unable to do their job. For example, if an employee is put on bed rest and being physically at work was an essential function of their position, then the employee could take FMLA leave because they cannot do their job because of their serious health condition.

What is the Future of Family Leave?

There is more political pressure to give some form of paid leave. Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

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Brett Holubeck