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It’s A Girl! Maternity Issues In The Workplace

The appearance of a baby bump in the office is cause for joy. But when you’re the business owner, it can also induce anxiety. Now you have to consider a whole raft of concerns about your legal obligations, not to mention how you’re going to cope while a key worker is on leave.



This report will help you navigate your way through an employee’s pregnancy and/or parental leave. You learn about laws governing parental leave, policies you might want to consider for your employees and more.



The Pregnancy Discrimination Act

There are several issues to consider when one of your staffers becomes pregnant.



The first is whether the employee will need leave for medical reasons before birth; the second is parental leave, for either the mother or father. Speaking of which, employers shouldn’t offer “maternity leave” these days. Instead, any policy should apply equally to new dads.



Micro-businesses are not affected by the Pregnancy Discrimination Act of 1978, an amendment to Title VII of the Civil Rights Act of 1964. It applies only to businesses with 15 or more employees. But in the interest of fairness, you might want to consider its provisions when creating your own policies.



The act prohibits hiring discrimination on the basis of pregnancy, and if an employee is “unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee,” according to the U.S. Equal Employment Opportunity Commission.



In other words, if you allow other workers with short-term disabilities to modify their job, assume an alternate assignment, or take disability leave or leave without pay, pregnant staffers should be given the same opportunities.



The law also stipulates that employers must hold jobs open for those on leave because of pregnancy for the same length of time they would hold a job for anyone on sick leave or disability. Furthermore, employers can’t withhold medical leave due to pregnancy from unmarried women.



The Family Medical Leave Act

The federal Family Medical Leave Act (FMLA) doesn’t apply to companies with fewer than 50 employees, although state laws may be a great deal more restrictive.



Passed in 1993, FMLA mandates that covered full- or part-time employees are eligible for as much as 12 weeks of unpaid leave each year under certain circumstances. Qualifying events include the birth of a child and placement of an adopted or foster child as well as the employee’s own serious health condition.



Those who wish to take parental leave must request it at least 30 days beforehand. Also, under federal FMLA guidelines, employers are not required to grant leave to workers who have not been on the job for 12 months, working at least 1,250 hours over that period. (Cautionary note: See “An Ohio Case To Watch” below.)



Pregnancy and the need for prenatal care are covered forms of medical leave if they cause any period of incapacity.



After 12 weeks of unpaid leave, employers must reinstate workers to the same job or an equivalent position, with equal pay, opportunities, working conditions and benefits.



FMLA is a complicated piece of legislation. If you have questions, contact the Department of Labor (www.dol.gov/esa/whd/fmla; 866-4-USWAGE) or your state labor office.



Stringent State Laws

In some cases state laws on pregnancy and parental leave are much more restrictive than federal statutes. Talk to your state department of labor before setting policy.



Here are some examples:



  • California—Businesses with five or more employees must provide up to four months’ unpaid leave for pregnant women disabled by pregnancy.



  • Hawaii—Employers with at least one staff member must grant unpaid disability leave for those disabled by pregnancy, childbirth or related conditions.



  • Maine—Companies employing 15 or more people must provide family and medical leave.



  • Vermont—Businesses with at least 10 employees must grant parental leave; those with 15 or more employees must offer medical leave.



An Ohio Case To Watch

A recent case in the Midwest has garnered attention from around the country.



In a nutshell, Tiffany McFee went to work for a nursing home, Pataskala Oaks, whose policy was not to provide FMLA coverage until employees had at least one year of service. If an employee with less service applied for leave, it was denied. If the employee had to take leave that wasn’t available, he or she was terminated but eligible to reapply for work in the future.



McFee, who was pregnant and had less than a year of service, was fired when she applied for leave, which was denied. In 2007 she filed a successful pregnancy-discrimination charge with the Ohio Civil Rights Commission. The county court reversed the Commission’s decision. The matter went to the appellate court, which in March 2009 upheld the Commission. The employer appealed to the Ohio Supreme Court in April 2009, and at the time of this writing the case had not yet been accepted.



The situation generated shockwaves because the court had determined that under Ohio law, employers must provide maternity leave for a “reasonable period” even if they do not provide similar medical leave for other employees. Small-business advocates say the decision has in effect eliminated exceptions for small businesses that required minimum periods of service before permitting leave.



Be aware that your state’s Civil Rights Commission could take a similar view. Construct leave policies accordingly and be cautious about requiring a certain period of service before leave is granted.



What Benefits Should You Offer?

If you have a handful of employees, your small business is probably exempt from federal and state laws related to pregnancy discrimination and medical and family leave.



But if you want to do right by your staff, you’ll want to offer at least some benefits to assist those who are new parents.



Note that if you offer any paid personal or medical leave to other workers—for instance, those who are temporarily disabled—you must offer the same benefit to pregnant women or new parents. In other words, paid medical or family leave must be granted equally to all employees.



Consider how much unpaid leave you can grant moms and dads and how much service will be required before employees are eligible for leave. Will part-time employees be eligible?



Workers on leave will need heath insurance coverage too. Will you pay your usual share of the premiums while they’re off the job?



Will you require employees to use paid vacation and sick days during leave? Will sick time or other accrued benefits accumulate during leave?



You’ll have to decide how generous you can be, how badly you want to keep valuable workers, and how competitive you need to be with other area companies that by law must offer parental leave.



If you belong to the local chamber of commerce or another business owners’ forum, talk with members about how they cope with parental leave. Friends in similar businesses may be willing to share their employee handbooks or policy manuals.



Put Parental Leave Policies In Writing

For your own protection, you need an employee handbook or policy manual that spells out what parental leave benefits you offer.



Putting policies in writing will prevent surprises caused by employees’ assuming perks that you don’t provide.



As you define your policies, consult your state labor agency and an attorney to make sure you’re meeting your legal obligations.



The document should clearly define your policies on issues such as”



  • Medical leave—including leave for serious health conditions related to pregnancy



  • Short-term disability



  • Parental leave for the birth or adoption of a child



  • Notification you require from employees (e.g., 30 days’ notice of the intention to take parental leave)



  • Placing employees who have been on leave in an equivalent job, not necessarily an identical job.



You can find numerous sample policies online. Detailed examples and tips can be found at:



Managing Workflow While Parents Are On Leave

What do you do when your star saleswoman is about to deliver a baby and plans to take 12 weeks of family leave?



You may need a number of strategies to get through the crunch. Consider these possibilities:



  • Before the leave begins, hold a brainstorming meeting with the pregnant employee and other staffers. Seek everyone’s ideas and advice on how to fill the void. Keep the tone of the meeting positive to encourage ideas rather than complaints.



  • Reassign tasks to other staffers if possible. If staffers volunteer, let them have specific duties they’re willing to accept. Otherwise, assign tasks on the basis of time and ability.



  • Take up some of the slack yourself. That demonstrates to workers that the temporary burden falls on you as well as them.



  • Keep motivation high by emphasizing that the staff is like a family whose members help each other as needed. Every worker would welcome the same treatment if he or she needed medical leave.



  • Use temporary workers to cover crunch periods. Because of the current recession, staffing agencies now have more highly skilled and experienced temps to offer than ever.



For More Information

Learn more about parental leave issues at these Web sites.



The Department of Labor’s Employment Laws Assistance for Workers and Small Businesses

www.dol.gov/elaws



Contact information for state labor offices

www.dol.gov/dol/location.htm



Understanding the Family Medical Leave Act

www.dol.gov/esa/whd/fmla/



Note: The information presented in this article does not constitute legal advice.