HR Compliance

Pregnancy Leave: What’s Required?

By

Kristin Birchell

| Nov 9, 2017

This blog is fourth in a series about pregnancy leave. To read the first three blogs in the series, click here

While paid pregnancy leave, maternity leave and parental leave are common in many countries, there are no federal laws mandating paid leave in the United States. However, there are laws which require employers to offer a minimum level of unpaid leave to pregnant employees.

Understanding minimum leave requirements is imperative for employers and is a step toward reducing the risks of pregnancy discrimination claims in the workplace. It also can provide employers with a great base line for determining which benefits they choose to provide pregnant employees.

Main Source of Leave: FMLA

Under federal law, an employee’s main source of pregnancy leave would arise under the FMLA (The Family and Medical Leave Act of 1993). According to this law, eligible employees are entitled to up to 12 workweeks of unpaid leave each 12-month period, according to this law. As an employer, you have four options for calculating when that 12-month period begins and ends:

  1. calendar year (Jan. 1 through Dec. 31)
  2. fixed “leave year” (can be based on any 12-month period, such as a fiscal year, or based on the employee’s anniversary date)
  3. 12-month period beginning with the date the employee’s first FMLA leave begins
  4. 12-month period that looks backward from the date the employee’s first FMLA leave begins.

The FMLA does not guarantee paid leave. However, an employee may elect to use, or the employer may require the employee to use, any accrued paid leave as part of the employee’s FMLA leave. Using accrued paid leave does not extend the amount of leave an employee is entitled to take under the FMLA beyond 12 weeks.

The 12 weeks of leave provided under the FMLA also may be limited in circumstances when both the pregnant employee and her spouse work for the same employer. In these instances, the pregnant employee and her spouse will be limited to a combined 12 weeks of leave.

Leave Requirements and the ADA

The Seventh Circuit recently held that the ADA (Americans with Disabilities Act) does not require employers to give workers extended additional leave after their 12 weeks under the FMLA ends. In Severson v. Heartland Woodcraft, Inc., the Court held that a long-term leave of absence could not be considered a reasonable accommodation and that the ADA was intended to be an antidiscrimination statute, not a medical-leave entitlement.

Although a pregnant employee may be entitled to “a brief period of leave” as a reasonable accommodation under the ADA, she likely will not be entitled to take extended leave on the basis of a pregnancy disability after exhausting all FMLA leave for the same pregnancy-related conditions. For example, a pregnant employee could not take 12 weeks of FMLA leave after the birth of her child due to medical conditions and then, upon the expiration of those 12 weeks, request 2 months of extended leave for that same medical condition as an accommodation under the ADA.

Of course, employers may choose to implement policies that provide for more leave than federal law requires. In addition, some states have passed family leave laws that are more expansive than federal ones. It’s important to know your company- and state-wide policies, especially when they differ from national leave policies, so you will be prepared to address any employee questions on pregnancy leave.

To learn more about pregnancy leave laws, visit the other blogs in our series, EEOC Cracks Down on Pregnancy Discrimination, Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave, and Addressing Employer Confusion With Pregnancy Related Laws: What to Expect When Your Employees Are Expecting.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Kristin Birchell

As a compliance attorney for Paycom, Kristin Birchell monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Birchell earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her husband.

See more posts by Kristin Birchell