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If you are pregnant and you are working, two federal laws protect your rights at work. The first law is the Pregnancy Discrimination Act of 1978 (PDA, 42 U.S.C. 2000e(k), which is an amendment to Title VII of the Civil Rights Act of 1964. Under the PDA, your employer cannot discriminate against you in the terms of your employment on the basis of your pregnancy. The second law is the Family and Medical Leave Act (FMLA). Under the FMLA, if you work for a business that employs at least 50 people, you are allowed to take up to 12 weeks of unpaid leave for certain family and medical reasons. State laws also protect you.
The PDA prohibits employers from discriminating against employees on the basis of sex, which includes pregnancy, childbirth, or related medical conditions. Maternity must be treated the same as other disabilities for purposes of sick leave or temporary disability benefits. So, if your employer has a sick leave policy, you should be able to take as many sick days for pregnancy and childbirth as other employees are allowed for other illnesses. If you have health insurance through an employer-provided group health care plan, pregnancy and childbirth should be covered in the same manner as other health conditions.
Under the PDA,
- Your employer cannot discharge you for taking time off for childbirth without incurring a charge of sex discrimination by the Equal Employment Opportunity Commission
- Your employer must reinstate you in the same manner in which it reinstates other employees with other temporary disabilities
- Your employer must give you seniority credit for your period of leave in the same manner as it gives other employees seniority credit for other kinds of disability leave
- Your employer cannot require you to take maternity leave
- If you are a male employee, your wife and children must receive the same health care benefits as female employees
Title VII requires employers to treat male employees who go on paternity leave in the same manner as they treat female employees who take leave for child-care purposes.
The FMLA provides job security for employees who need to take time off for certain family or medical reasons. For an employee to be eligible:
- The employer for which the employee works must have at least 50 employees (either part-time or full-time) who live within 75 miles of the company (or the employee must work for either the federal, state or local government).
- The employee must have worked for the employer for at least 12 months and at least 1,250 hours.
The act allows employees to take time off:
- To care for a newborn child
- To care for a new adopted or foster child
- To care for a seriously ill son, daughter, parent or spouse (A child over the age of 18 isn’t covered, unless the adult child is considered “incapable of self-care because of a mental or physical disability” as defined by the Americans with Disabilities Act.)
- To care for themselves (when an employee suffers from a “serious health condition” that prevents job performance)
What Is a “Serious Health Condition” ?
The Department of Labor defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves “inpatient care” or continuing treatment by a health care provider. Basically, cancer, diabetes, surgery, pregnancy difficulties and so forth qualify.
If an employee is eligible for sick leave under the law, the employer may (but isn’t required to) offer that employee a lighter schedule or some other accommodation so that the employee can keep working.
Job Security under the FMLA
It’s illegal for an employer to reprimand the employee or count FMLA leave against an employee in any way – including attendance.
An employee must be offered the same job or an equivalent position when he or she returns, unless:
- After the allotted 12 weeks, the employee can’t return to the job or perform the same work because of a physical or mental condition.
- If FMLA leave will cause “substantial and grievous economic injury” to the business, “key” employees (those who are among the highest paid 10 percent in the business) don’t have to be reinstated in their jobs.
Taking Leave under the FMLA
In order for an eligible employee to take leave under FMLA, he or she should:
- Give the employer 30 days written notice before starting the leave. (However, in certain circumstances an employee can take leave immediately or within one to two working days.)
- Provide medical proof. This may require more than just a doctor’s note. The employer can request second and third medical opinions, but the employer must pay for those.
- Make arrangements with regard to continuing group health benefits during the leave.
- Address issues on whether to use accrued paid leave (such as sick leave or vacation leave) as part of the FMLA leave. Under the law, an employer can require an employee to use accrued leave.
- Respond to an employer’s occasional checks to verify status and intent to return to work. (A failure by an employee to provide medical certification when the employer requests it may be grounds for termination of employment.)
- Within two business days of returning to work, an employee may request that his or her leave be recorded as FMLA-related.
State Law Requirements
While FMLA may serve as a good guideline as to what is required of employer in this area, there may also be state laws that come into play. To find out what state-specific requirements may be in the area of employee leave, you should check the laws of each state where the business has employees.