I recently had lunch with a friend who is happily expecting her first child. While this is certainly an exciting time for her and her husband, she couldn’t help but be anxious about her company’s attitude concerning her pregnancy and the new arrival. Specifically, when she asked the company’s HR Manager about her options for time off before and after delivery, the Manager told her that since she hadn’t been employed by the Company for at least a year, she wasn’t eligible for leave under the Family and Medical Leave Act (“FMLA”). My friend then told the HR Manager that she was having some complications, and wanted to know if there was any type of policy that would allow her time off while essentially protecting her position. The Manager’s response left me speechless – the HR Manager apologetically told her that “No, we’re sorry, but there isn’t anything that would cover you. Once you’re through with your remaining PTO, we’ll expect you back at work.”
It’s likely my friend’s HR Manager is overlooking a few very important considerations. For instance, given the pregnancy’s complications, the HR Manager would be advised to consider whether the Americans with Disabilities Act might come into play, especially given the recent expansion of the law’s protections. Similarly, the company could be asking for a disparate treatment lawsuit if they’re treating my friend’s pregnancy-related absence differently from other types of absences.
In my experience as an HR Practitioner, here are the top three things every employer should know about Pregnancy and ADA:
1. The Americans with Disabilities Act (ADA) does not consider a normal pregnancy to be a disability.
Just because an employee is pregnant, it doesn’t mean she automatically qualifies for ADA protection.
2. If your employee experiences complications from her pregnancy, she may be considered to have an impairment and perhaps entitled to accommodations under the ADA.
However, if your employee experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and may be entitled to reasonable accommodation to perform her job. Her physician should be able to provide documentation that accurately reflects her condition. Think preeclampsia here (pregnancy induced high blood pressure) and not so much the stomach flu she got from her husband.
3. You cannot, must not, shall not fire, discriminate against or prevent from advancing anyone just because she is pregnant.
Did I really just read an article about an employer who fired a pregnant employee because she took too many breaks getting sick in the bathroom? Hard to believe, but yes, sadly it does happen. For employers, does this mean you cannot discipline or fire any pregnant employee? No, it certainly doesn’t’, but employers must tread very carefully here. Like all other disciplinary actions, employers make sure to treat everyone equally and it doesn’t hurt if there’s clearly documented performance issues of that employee in the past. Additionally, a carefully crafted section in the employee handbook on ADA and Pregnancy Disability should help to answer many questions and keep liability at a minimum.
The balance between being fair and sensitive to employee issues, such as potential disabilities (like pregnancy), while keeping a watchful eye on the business is perhaps a delicate one. However, as the employer, we are ultimately responsible for making sure that employees are provided with the information they will need, while making sure that the business is protected.