The HR Specialist

Pregnant Employees: Answers to Your 20 Toughest Legal Questions

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Not many years ago, pregnant women were subject to poor treatment from employers and company insurance plans as well. But the Pregnancy Discrimination Act (PDA), enacted in 1978, prohibits discrimination on the basis of “pregnancy, childbirth and related medical conditions.” The PDA required most employers to make changes in their maternity leave, disability pay and health insurance policies.

The law obligates all employers to treat disabilities caused by pregnancy and related conditions the same as other temporary disabilities under any health, disability, insurance or sick leave plan. It also prohibits discrimination based on a woman’s ability to become pregnant, such as policies that exclude women of childbearing age from certain jobs.

A woman also cannot be denied a job or promotion merely because she is pregnant or had an abortion. She cannot be fired because of her condition, nor can she be forced to go on leave as long as she is physically capable of working. Women who take maternity leave must be reinstated under the same conditions as employees who return from leave following other temporary disabilities. The EEOC has published a series of questions and answers that clear up most of the law’s ambiguities. Court decisions have provided answers as well. Here are answers to some of the most common questions employers face:

 

On the Job/Hiring Rules

1. Are you obligated to accommodate an employee who cannot, because of her pregnancy, perform her usual assignments?

A. That depends on the type of accommodation you usually make for other employees who are unable to perform their usual jobs. For example, if you provide other work for an employee who cannot do any lifting because of a bad back, you must make similar arrangements for a pregnant employee.

 

2. What procedures can you use to force a pregnant employee to take a leave of absence or to stay on the job if she wants to leave?

A. The EEOC says emphatically that you cannot single out pregnant employees for special procedures to determine their ability to continue work. However, you can apply the same requirements that you impose on other employees. So if you usually require employees to obtain a doctor’s note before allowing them to take sick leave and collect benefits, you can impose the same rule on pregnant employees.

 

3. Can you bar a woman from returning to work for a predetermined period after she gives birth?

A. No. You cannot have a rule, for instance, that a woman must wait a month following childbirth before returning to work.

 

4. If a pregnant employee goes on maternity leave because she is ill and then feels better and wants to return to work, can you require her to stay on leave until she gives birth?

A. No. An employee can return to work anytime during her pregnancy as long as she can perform her job.

 

5. Must you keep the job of a pregnant employee open until she is ready to return to work following the birth of her child?

A. Generally, yes. Unless you are informed that she will not return to work, you must keep the job open on the same basis as jobs that are held open for employees on sick leave or disability leave for other reasons.

 

6. Are you required to hire a woman who, because of her pregnancy, cannot perform only one of a job’s necessary functions?

A. You cannot refuse to hire a pregnant woman who is capable of performing most major job functions. Furthermore, you cannot refuse to hire her just because co-workers, clients or customers prefer that the job not be filled by a pregnant worker.

 

7. Can a company transfer a pregnant employee to a position of less earning power?

A. No, according to a decision by a U.S. Appeals Court. The decision singles out two pitfalls for companies in regard to pregnant employees:

  • A supervisor’s question to an employee about her family and childbearing plans has no place in hiring, promotion or other employment decisions.
  • An employer may not usually ask a pregnant employee to choose between a lower-level job and resignation.

 

Health and Disability Insurance

8. Must you provide benefits for pregnancy-related conditions even if you have a predominantly female work force or if you employ all women for a specific job classification?

A. Yes. You must provide benefits for pregnancy if you offer benefits for other medical conditions.

 

9. Can your company limit pregnancy disability insurance benefits to only married employees?

A. No. Single women who become pregnant also must be covered under your disability plan.

 

10. How long are you required to pay disability benefits for pregnancy if you provide income maintenance benefits for other temporary disabilities?

A. Generally, you must provide benefits for as long as a pregnant woman is unable to work for medical reasons; however, you may impose certain time limits if you impose them on other temporary disabilities.

 

11. Can you require a pregnant employee to use up her vacation benefits before she can collect sick leave or disability pay?

A. Yes, but only if you have the same requirements for employees absent for other types of disabilities or illnesses. You should state this in your FMLA policy.

 

12. Must your health insurance plan cover the pregnancy-related expenses of spouses of your male employees? Of other dependents?

A. If an employer’s plan covers medical expenses of spouses of female employees, it must cover the expenses of spouses of male employees, including pregnancy. Insurance coverage for pregnancy need not be extended to include other dependents as long as it excludes pregnancy benefits for dependents of both male and female employees.

 

13. Can an employer limit payment of costs resulting from pregnancy-related conditions to a specific dollar amount stipulated in an insurance policy, collective bargaining pact or other statement of employee benefits?

A. Yes. Maximum recoverable dollar amounts can be set for pregnancy-related conditions, provided the amounts are specified for other conditions and the specified amounts in all instances cover the same proportion of actual costs. What’s more, an employer must pay additional costs for pregnancy-related procedures if additional payments are made for other procedures. Note: You can't tack on an additional deductible or increase the usual deductible for coverage of pregnancy, either as a condition for inclusion of pregnancy costs or for the payment of costs when incurred.

 

14. If a health plan specifically excludes conditions existing at the time when the insured’s coverage takes effect (pre-existing condition clauses), can the same rule apply to pregnancy existing at the time insurance coverage takes effect?

A. No. Pre-existing conditions cannot be applied to pregnancy, according to the Health Insurance Portability and Accountability Act of 1996.

 

15. If you offer employees a choice between enrolling in one of two health insurance plans, must both cover pregnancy-related conditions?

A. Yes. An employee with a single-coverage policy can’t be forced to purchase a family policy in order to be covered when she becomes pregnant.

 

Abortion Policies

16. Can you refuse to hire, discharge or in any other way discriminate against a woman for the sole reason that she has had an abortion?

A. No. A woman who has had an abortion must be treated the same as other employees.


17. If an abortion leads to complications, such as excessive hemorrhaging, must your health insurance plan cover the additional costs attributable to these complications?
A. Your plan must pay costs arising from complications resulting from an abortion—but not necessarily for the abortion itself.

 

18. Can you decide to have your insurance program cover abortion, even if it’s not required?

A. Yes. The Pregnancy Discrimination Act specifically says that employers can provide insurance for abortion, either directly or through a collective bargaining agreement. However, employers are warned that if they do include abortion in their health insurance plan, they must do so in the same manner as they cover other medical conditions.

 

Family and Medical Leave Act (FMLA)

Pregnant employees who take leave to have a child may also be covered under the Family and Medical Leave Act (FMLA). Since 1993, the FMLA has provided qualified employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; or for caring for a child, spouse or parent with a serious health condition; or convalescense after the employee's own serious health condition. Any company with 50 or more employees must comply. To be eligible for FMLA leave, an employee must work for the same employer for at least 12 months and clock at least 1,250 hour of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.

FMLA leave requests fall into two categories: forseeable and unforseeable. Since pregnancy leave is forseeable, employees are required to provide at least 30 days' notice or notify the employer "as soon as practicable." Notification can be verbal or written.

Employees don't have to use the term "FMLA leave." Simply any indication that the employee will be off work for a reason covered by the FMLA is sufficient notice. You must train your supervisors to recognize FMLA requests.

Key point: A parent can take leave to care for a newborn or newly adopted child any time during the first 12 months after the birth or adoption. The leave must be concluded before the 12-month period ends. If both parents work for the same company, they would be entitled to a combined total of 12 weeks for the birth or adoption of a child. Two other related questions:

19. Can an employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?

A. Yes. An eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. If the employee uses some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week leave entitlement.

20. How about maternity leave or disability that results from pregnancy? Do they qualify as FMLA leave?

A. Yes. Maternity leave or disability that results from pregnancy would be considered qualifying FMLA leave for a serious medical condition and may be counted in the 12 weeks of leave as long as the employer propertly notifies the employee in writing of the designation.


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