Labor and Employment

Laws Protecting Pregnant Employees

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Pregnant employees may not be discriminated against and may be entitled to time off from work.

If you’re a pregnant worker, two federal laws protect your workplace rights. The first law is the Pregnancy Discrimination Act of 1978, which is an amendment to Title VII of the Civil Rights Act of 1964. Under the Pregnancy Discrimination Act (PDA), your employer cannot discriminate against you in the terms of your employment on the basis of pregnancy, childbirth, or related conditions. The second law is the Family and Medical Leave Act. Under the Family and Medical Leave Act (FMLA), larger employers must provide unpaid leave for certain family and medical reasons, including pregnancy and bonding with a new child.

The laws of your state may give you additional rights. Most states also prohibit pregnancy discrimination. And, some states are more generous than the FMLA in providing employees with time off work for pregnancy disability and caring for a new child.

The Pregnancy Discrimination Act

Title VII prohibits employers from discriminating against employees on the basis of sex; the PDA makes clear that this prohibition includes pregnancy, childbirth, and related medical conditions. While the PDA does not require employers to provide time off for pregnancy disability, it does require employers to treat pregnancy disability 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.

Your employer must provide reasonable accommodations for your pregnancy on the same basis as it provides accommodations to employees who are temporarily disabled for other reasons, unless it has a neutral business reason (one that does not discriminate based on pregnancy) for treating workers differently. However, even if your employer has such a justification, it must accommodate pregnant employees if its policy would otherwise place a significant burden on female employees, unless the reason for the difference in treatment is strong enough to justify the burden. (To learn more, see Pregnancy Discrimination at Work.)

Under the PDA, your employer also:

  • may not require you to take time off work during your pregnancy if you are able to do your job,
  • must reinstate you in the same manner in which it reinstates other employees with other temporary disabilities, and
  • must give you seniority credit for your period of leave in the same manner as it gives employees seniority credit for other kinds of disability leave.

Most states also prohibit pregnancy discrimination. And, some states require employers to make reasonable accommodations for pregnant employees, regardless of whether they accommodate employees with other disabilities.

The Family and Medical Leave Act

The FMLA requires employers with 50 or more employees to provide up to 12 weeks of leave each year for certain family or medical reasons. For an employee to be eligible, both of the following must be true:

  • The employer for which the employee works must have at least 50 employees who work within 75 miles of the employee’s worksite.
  • The employee must have worked for the employer for at least 12 months and at least 1,250 hours during the 12-month period before the employee takes leave.

The FMLA allows employees to take time off for a variety of reasons, including their own serious health conditions (including pregnancy and childbirth), caring for a newborn child, and caring for a newly adopted child or newly placed foster child.

Job Security and Time Off

The FMLA provides job-protected leave, which means that you are entitled to get your job back when your leave is over. An employee must be offered the same job or an equivalent one when he or she returns, unless any of the following are true:

  • The employee can’t perform an essential function of the job (although the employee may be entitled to a reasonable accommodation under the Americans with Disabilities Act in this situation).
  • The employee would have lost the job regardless of taking FMLA leave (for example, because the employee’s department was laid off).
  • The employee takes FMLA leave fraudulently.
  • The employee is among the highest-paid 10% of the company’s workforce, and reinstating the employee would cause substantial and grievous economic injury to the company (called the “key employee” exception).

Unless one of these exceptions applies, employees are entitled to get their jobs back and to have all of their benefits reinstated when their leave is over. (The FMLA requires employers to continue an employee’s health insurance during leave; for more information, see Taking Family and Medical Leave.)

It's illegal for an employer to reprimand an employee for taking FMLA leave or to count FMLA leave against an employee in any way. For example, an employer may not count FMLA leave as an unexcused absence under its attendance policy.

Taking Leave Under the FMLA

If you know that you will need FMLA leave (for example, because you are pregnant and know you will want to take leave after the birth of your child), you must give your employer notice at least 30 days in advance. If your need for leave is not foreseeable (for example, because your doctor prescribes bed rest for the last month of your pregnancy), you must give as much notice as you can.

Your employer will give you some notices about the FMLA and forms to complete. For the medical portion of your leave, you may be asked to provide a medical certification from your doctor about your condition and how long you will be out.

FMLA leave is unpaid, but you can use accrued paid leave as long as you follow the usual rules under your employer’s policy. Your employer can also require you to use to use your accrued paid leave during FMLA leave. Your employer is allowed to check in with you periodically about your intent to return to work.

State Law Requirements

A number of states have their own family and medical leave laws. Some require employers to provide leave for pregnancy disability and childbirth, some require leave to bond with a new child, and some require that employers make the same leave available to adoptive parents as they provide to biological parents, for example. These laws may apply to smaller employers, have different eligibility requirements, provide longer periods of time off, and have notice and paperwork requirements that differ from the FMLA.

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