Pregnancy Leave When Not Covered by FMLA (Q&A)

Do you know what your obligations are to a pregnant employee who is
not covered by the FMLA? Find out what steps you should take to
prevent pregnancy discrimination.Q: If an employee needs leave for pregnancy-related issues, do we
have to reinstate her after the leave? Do we have to provide a certain
number of weeks of leave? We have 45 employees and are not covered
by the FMLA.

A: If your organization is not covered by the Family and Medical
Leave Act (FMLA) or if an employee is not eligible for FMLA leave, then
you still must comply with the Pregnancy Discrimination Act (PDA),
any internal policies, and any state laws requiring pregnancy leaves of
absence.

(The FMLA generally applies to employers with 50 or more employees
and all public agencies and schools, and provides leave and
reinstatement rights for various family and medical reasons, including
pregnancy. (Click to download a free FMLA Checklist.)
An eligible employee is one who: (1) has worked for the employer for at
least 12 months (not necessarily consecutively); (2) has worked for the
employer for at least 1,250 hours in the previous 12 months; and (3) works
at or is assigned to a worksite that has 50 or more employees or which is
within 75 miles of employer worksites that taken together have a total
of 50 or more employees.)

The PDA, found at 42 U.S.C. §2000e(k), amended Title VII of the Civil
Rights Act to prohibit discrimination based on pregnancy. It applies to
employers with 15 or more employees and requires employers to treat
women affected by pregnancy, childbirth, or related medical conditions
the same as employees who are on leave for other temporary medical
disabilities. Thus, because the PDA is an antidiscrimination law rather
than a law mandating leave, it does not require covered employers to
grant pregnancy leaves. Instead, it only entitles pregnant employees to
the same leave and benefits granted to nonpregnant employees with
other temporary medical disabilities.

So, if your organization regularly grants leaves for other temporary
medical disabilities and guarantees reinstatement, then you should treat
pregnant employees in the same manner. As explained in the Equal
Employment Opportunity Commission (EEOC) guidelines interpreting the
PDA, found in 29 C.F.R. §1604.10(b), any policies relating to the
commencement and duration of leave, the availability of leave
extensions, the accrual during leave of seniority and other accrued
benefits and privileges, insurance coverage, and reinstatement after
leave must apply equally to pregnancy and other disabilities.

Although you may not treat pregnant employees differently if the
differences affect them adversely compared to others with temporary
medical conditions, you may be able to treat them more favorably. In the
Supreme Court's ruling in California Fed. Sav. & Loan Ass'n v. Guerra,
479 U.S. 272 (1987), the Court upheld a California statute requiring
employers to provide female employees an unpaid leave for pregnancy
disability and to reinstate those employees when they are able to return
to work unless the job is no longer available. The Court held that a state
could mandate the provision of a benefit to pregnant employees that is
not granted to other disabled employees. This decision appears to allow
employers to give pregnant employees greater leave flexibility than is
given to other temporarily disabled employees.

You also should check state law for any additional pregnancy leave
obligations. Some states have laws guaranteeing pregnant employees
leaves and reinstatement rights. For example, the California statute,
discussed above and validated by the Supreme Court, requires
employers with five or more employees to provide female employees
with up to four months of leave in connection with a period of disability
resulting from pregnancy, childbirth, or related medical conditions.