You just got back from the doctor and he gave you the best news of your life! You are having a baby! You have so many thoughts racing through your head — what color should I paint the nursery? Who should I call first? Should I wait to determine the gender? I don’t know what car seat to pick out (click here and find out)! Should I go to Lamaze classes?
As an expecting mother, being fired is not something you should worry about. Stress should be left elsewhere. However, some women are left in the situation of worrying about what is going to happen to the job they love and cherish. They value their job. They enjoy going in to work. They enjoy building a company that gave them a chance. Most importantly, they need their job because it provides their family with economic stability.
When a baby is on the way, our clients have questions about their jobs: Do I have time off? How will I perform the tasks I am in charge of if I am pregnant? Can I be fired if I am pregnant?
In our experience, some employers handle these situations with ignorance and insensitivity. Many employers pressure their expecting employees in to thinking they need to quit. We have a client right now whose company crafted an exit plan for the employee, in a way where they thought the employee would not suspect the insincerity behind the employer’s pressure “to do what is right.” Other employers flat-out wrongfully discharge their expecting employees.
Federal and State Laws Prohibit Discrimination on the Basis of Pregnancy
Generally, an employer can fire an employee for any reason because most states follow the “at-will” employment approach. If your employment is at will, your employer does not need good cause to fire you. However, federal and state laws prohibit discrimination on the basis of pregnancy, childbirth, or medical conditions related to the pregnancy or childbirth. Laws prohibit an employer from discriminating based on pregnancy in any aspect of employment – hiring, firing, wages and compensation, benefits, leave, assignments, and the like.
…You Cannot be Harassed or Intimidated Either!
An employee also cannot be harassed or intimidated on the basis of pregnancy. No matter whether the harassment or intimidation is advanced by a supervisor, co-worker, secretary, or, in some situations a customer, an employee is protected. In some situations, harassment at the workplace can become so frequent or severe that it becomes hostile and/or offensive, which can lead to an employee quitting. Federal and state laws protect employees from being deprived of their livelihood when they have to make an adverse employment decision.
You Are Entitled To Reasonable Workplace Accommodations
Under certain federal and state laws, an employer must provide certain reasonable accommodations to pregnant workers, regardless of whether or not a “disability” arose out of a normal, healthy pregnancy, or a more complicated pregnancy. A reasonable accommodation is a modification or adjustment that enables a person to do the core parts of his or her job. As the Equal Employment Opportunity Commission (EEOC) has explained, this means that “[a]n employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay, etc.”
Some accommodations may include: modified work schedule, modified work policies, reassignment to a vacant position, excusing an employee from performing certain job tasks, less demanding job duties, providing or modifying assistive equipment or devices, or reassigning tasks.
What Type Of Leave Am I Entitled to?
Employees usually use a combination of short-term disability, sick leave, vacation, personal days, and unpaid family leave during his (fathers can take leave after pregnancy) or her time away from work. An employee cannot be legally discharged, or fired, for taking such leave after or during pregnancy.
An employee, man or woman, is entitled to take unpaid, job-protected leave to take care of a newborn child under the Family and Medical Leave Act (FMLA). However, FMLA only applies to employers and employees that meet certain criteria. An employer is covered if the employer is a: (1) Public or private school (elementary and secondary); (2) Federal, State, and local agency employers; or (3) Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. An eligible employee is one who: (1) works for a covered employer; (2) has worked for the employer for at least 12 months; (3) has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and (4) works at a location where the employer has at least 50 employees within 75 miles.
If the employment falls under FMLA, then the employee may be eligible for up to 12 weeks of leave, unpaid or paid depending on whether or not the employee has earned or accrued the time. There are a few exceptions: an employer isn’t required to keep a job open for if the employee is in the highest-paid 10% of wage earners at the company and the employer can show that the employee’s absence would cause substantial economic harm to the organization. Another exception is if both parents work for the same company. In this case, the couple is only entitled to a combined 12 weeks of parental leave between the two of them. Even if an employee is not eligible under the FMLA, he or she may still be eligible for leave under a state’s provisions, which are usually more generous than the FMLA, or under the company’s family leave policy.
Under the Pregnancy Discrimination Act (PDA), if an employer allows temporarily disabled employees to take disability leave or leave without pay, it must also allow an employee who is temporarily disabled due to pregnancy to do the same.
Furthermore, if a mother experiences impairments resulting from the pregnancy, she may endure a disability that falls under the Americans with Disabilities Act (ADA), depending on the severity. Under the ADA, if an employee is disabled due to pregnancy, the employer must provide certain modifications, or leave if necessary, to the employee’s work routine as long as the accommodations do not create an undue hardship on the employer.
What sorts of accommodations have you been given at work? Comment below.
Robert Kinsman is a personal injury, mass tort, business litigation, and employment discrimination attorney who practices in Kansas City, Missouri. He graduated from the University of Missouri Kansas City School of Law and has been practicing law for several years now. Robert Kinsman is passionate about normalizing the life of his clients after they have been seriously injured. Learn more about his experience here.