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I Have a Pregnant Employee. What are my Obligations for Providing Leave?

Christine Batten, PHR
by Christine Batten, PHR on March 5, 2014

pregnant employeeWe can all agree that moms are special people. And the law agrees, because there are special laws that protect pregnant employees from being terminated or treated unfairly because they are pregnant. However, while it is important to understand what that protection entails, employers also need to know its limits in order to relay a clear explanation to employees regarding what it may not include.

Under federal law, specifically Title VII of the Civil Rights Act of 1964, employers with 15 or more employees¹ may not discriminate against workers because of what the law has established as “protected classes” (race, religion, sex, color and national origin)² . So where’s pregnancy in there? Well, since only women can become pregnant, “because of sex” includes “because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.”

So what are employers prohibited from doing “because of” pregnancy? In general, discrimination means treating someone unfairly or adversely because of a protected class they belong to. As such, employers are prohibited from treating pregnant employees worse than non-pregnant employees simply because they are pregnant.

That being said, while pregnant employees cannot be treated worse, it doesn't mean they must be treated better… just equal.

Employers must treat workers disabled by pregnancy or childbirth the same as they treat other temporarily sick or disabled employees. Thus, if an employer provides paid leave, such as sick leave, to ill or temporarily disabled employees, it must provide the same to women temporarily disabled by pregnancy or childbirth. Similarly, if the employer allows sick or temporarily disabled employees time-off from work to seek medical treatment, it must do the same for pregnant employees. On the other hand, if the employer does not allow ill or temporarily disabled employees to take leave, they are not paid during their absences, or they are in danger of termination for their absences, so too are women disabled by pregnancy or childbirth.³

Employers with 50 or more employees are covered under the Family Medical Leave Act (FMLA) and must provide job-protected leave to qualified employees in connection with pregnancy, birth, bonding and adoption. Absent any state laws that apply to smaller employers, offering actual “maternity leave” is at the sole discretion of the employer. Since there are common misunderstandings about what pregnant employees are entitled to, you should have clear written policies concerning this topic. As mentioned above, employers just want to be sure and establish policies and practices to ensure equal treatment to all.

If you have questions on hiring and employing pregnant women under federal law for your business, please contact us. We’re here for you!

¹ There are many similar state laws that apply to smaller employers.

² There are other protected classes covered by separate federal laws, however for discussion of this topic I only reference Title VII.

³ Pregnancy leave laws may require employers to provide eligible employees with unpaid leave for pregnancy-related medical conditions and family bonding

Christine Batten, PHR
Christine Batten, PHR

Christine has over 20 years of HR related experience with a background in labor and employment law.