I'M PREGNANT! WILL I BE ABLE TO KEEP MY JOB?
Sept. 27, 2019
Your rights as an expectant mother are determined by whether three statutes apply to you.
THE ADA AND PDA APPLY TO EMPLOYERS WITH 15 OR MORE EMPLOYEES
The most likely statutes that apply to you are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), because they apply to employers with 15 or more employees. The Pregnancy Discrimination Act says that pregnant employees can not be treated differently than non-pregnant employees. The law forbids discrimination in accommodations, granting of leave, and terminating employees or reassigning them because an employee is pregnant.
The Americans with Disabilities Act provides a potential additional layer of accommodation to employees who are experiencing pregnancy related complications and requires that employers reasonably accommodate those individuals who experience pregnancy related complications. It also protects individuals who seek accommodations from retaliation.
THE FMLA APPLIES TO EMPLOYERS WITH 50 OR MORE EMPLOYEES WITHIN 75 MILES
The Family Medical Leave Act (FMLA) applies to large employers. It provides expectant mothers and fathers with up to 12 weeks of unpaid leave. It forbids retaliation for invoking the right to take leave. The Family Medical Leave Act is the broadest and most protective federal leave statute.
Beware that the FMLA only applies to you if you have worked for the company for one full year and worked 1250 hours in the last year. Both mothers and fathers may take leave within one year of the child's birth, which can be helpful in juggling parenting obligations or dealing with unexpected health issues of your newborn. The FMLA will also protect parents with regard to leave related to their child's serious health conditions. Serious health conditions are conditions that require inpatient care or continuing treatment by a healthcare provider.
WHAT RIGHTS DO I HAVE TO TAKE UNPAID LEAVE IF MY EMPLOYER IS NOT FMLA ELIGIBLE?
Unfortunately, if your employer is not FMLA eligible, your right to take leave is tied in to whether your employer has offered leave to similarly situated employees who were similarly disabled. So for example, if your employer had offered four weeks of leave to an employee in your job position who could not work after a car accident, your employer could arguably be discriminating against you if they did not offer you four weeks of leave for the birth of a child. Because of the necessity of finding a similarly situated employee who was treated better, pregnancy discrimination cases with regard to small employers can be more difficult to win.
The EEOC outlines the following scenario which would be sufficient to make out a pregnancy discrimination case:
An employee requests light duty because of her pregnancy. The employee's supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform. Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company. It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position.
CAN I BE FORCED TO TAKE LEAVE AT MY EMPLOYER'S BEHEST?
An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee's best interest. The EEOC provides the following demonstrative example:
Lena worked for a janitorial service that provided after hours cleaning in office spaces. When she advised the site foreman that she was pregnant, the foreman told her that she would no longer be able to work since she could harm herself with the bending and pushing required in the daily tasks. She explained that she felt fine and that her doctor had not mentioned that she should change any of her current activities, including work, and did not indicate any particular concern that she would have to stop working. The foreman placed Lena immediately on unpaid leave for the duration of her pregnancy. Lena's leave was exhausted before she gave birth and she was ultimately discharged from her job. Lena's discharge was due to stereotypes about pregnancy.