Pregnancy/Parental Leave

April 13, 2006

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If you have 15 or more employees, you are subject to a federal law that protects pregnant women. The federal Pregnancy Discrimination Act, which is part of Title VII of the Civil Rights Act of 1964, provides that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The law protects women against being fired, being refused a job, or being denied a promotion merely because they are pregnant. In addition, a woman usually may not be forced to go on leave as long as she is able to work.

Pregnant women are to be treated in the same manner as other persons with temporary disabilities for purposes of leave as well as participation in benefit plans and health and disability insurance. Further, if other employees who take disability leave are entitled to get their jobs back when they are able to work again, so are women who are unable to work because of pregnancy.

Pregnancy leave versus parental leave. There is a difference between pregnancy leave and parental leave. Pregnancy leave is medical leave that is provided in connection with a pregnancy-related disability, either before or after the birth of a baby. Parental leave, on the other hand, is leave to care for a child, and may apply to adopted children as well as natural-born. Some call parental leave "maternity leave" and offer it only to women. To avoid trouble with the federal or state antidiscrimination laws, you should establish parental leave that allows both male and female employees the same leave benefits upon the birth of a child. Remember that if you have 50 or more employees, you must allow up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act.

State laws. Before finalizing your family leave and pregnancy leave policy, you should check to see if your state has family leave laws or pregnancy leave laws that might affect how you set up your policy. The following states have specific laws related to pregnancy that affect employers with fewer than 15 employees.

California. California's law on pregnancy leave covers persons employing five or more persons. All such employers must provide a leave of up to four months, as needed, for the periods of time a woman is actually disabled by pregnancy even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.

Hawaii. Hawaii's law on pregnancy leave applies to all employers with at least one employee. Disability due to or resulting from pregnancy, childbirth or related medical conditions must be considered by the employer to be justification for a leave, without pay, by the female employee for a reasonable period of time, to be determined by her physician.

Iowa. Iowa's pregnancy leave law applies to employers with four employees or more, and requires that written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, must be applied to a disability due to the employee's pregnancy or giving birth on the same terms and conditions as they are applied to other temporary disabilities. In any event, the employee must be permitted up to eight weeks of leave for pregnancy-related disability, as needed.

Maryland. For all employers, disabilities caused or contributed to by pregnancy or childbirth are temporary disabilities for all job-related purposes, and must be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment.

Massachusetts. Massachusetts' pregnancy leave law applies to employers with six or more employees and requires that written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, must be applied to a disability due to the employee's pregnancy or giving birth on the same terms and conditions as they are applied to other temporary disabilities. In any event, the employee must be permitted up to eight weeks of leave for pregnancy-related disability, as needed.

Missouri. Missouri's pregnancy leave law applies to employers with six or more employees and requires that written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, must be applied to a disability due to the employee's pregnancy or giving birth on the same terms and conditions as they are applied to other temporary disabilities.

Montana. It is unlawful for an employer or its agent to refuse to grant to an employee a reasonable leave of absence for her pregnancy; deny compensation, disability, or leave benefits accrued under the employer's plan to pregnant employees; or require that an employee take a mandatory maternity leave for an unreasonable length of time.

New Hampshire. New Hampshire's pregnancy leave law covers employers with six or more persons. An employer must permit a female employee to take a leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position must be made available to her unless business necessity makes this impossible or unreasonable.

New York. In New York employers with four or more employees must provide sick leave or disability benefits to employees with pregnancy-related disabilities at the same level that those benefits are provided to employees with other disabilities. An employer cannot compel an employee who is pregnant to take a leave of absence unless the employee is prevented by the pregnancy from performing the activities involved in the job or occupation in a reasonable matter.

Pennsylvania. Pennsylvania pregnancy leave law requires that written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or sick leave plan, formal or informal, must be applied to a disability due to the employee's pregnancy or giving birth on the same terms and conditions as they are applied to other disabilities. Mandatory maternity leave policies that require a pregnant employee to take leave automatically at a specified time during pregnancy or to remain away from work after she has recovered from her disability are in violation of the Pennsylvania Human Relations Act.

Puerto Rico. All pregnant working women are entitled to a rest period that includes four weeks before and four weeks after childbirth. A woman may opt to take only one week of prenatal rest, and to extend up to seven weeks the postnatal rest she is entitled to, provided she presents a medical certificate to her employer showing that she is able to work up to one week before childbirth. An employer must pay a working mother during maternity leave the salary, wages, day wages, or compensation that she is receiving for her work. Where medical complications occur, leave must be extended for up to 12 weeks but need not be paid. Maternity leave also covers employees who adopt a minor who is five years old or younger and is not registered in school.

Washington. In Washington, an employer must provide an employee with a leave of absence for a period of time that she is sick or temporarily disabled because of pregnancy or childbirth. An employer must treat a woman on pregnancy-related leave the same as other employees on leave for sickness or other temporary disabilities, except when the application of the employer's general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men.

Washington employers must grant an adoptive parent or stepparent, at the time of birth or initial placement for adoption of a child under six years of age, the same leave under the same terms as the employer grants to biological parents. The same terms for leave apply for men and women. An employer may restrict the leave to those living with the child at the time of birth or initial placement.

Getting more information. We suggest that you check with your state labor agency or your attorney about pregnancy laws in your state, and be sure to ask about the following points of compliance:

how long the leave can be
whether or not the leave must be paid leave
which posting requirements you are subject to
if there are "less strenuous work options" provisions in the law
how pregnancy should be treated as a disability under state law
which prohibitions about discrimination against pregnant employees the law contains
which notification requirements employees may be required to comply with
which requirements the law has regarding reinstating pregnant employees