Part 4 of a 6-part series examining the steps in-house counsel should take with pregnant employees
After recovery from child birth, if an employer provides an additional four weeks of leave time (paid or unpaid) for a female employee for parenting or bonding time with the child, must the employer treat new fathers the same way?
Yes if the FMLA applies, no under the ADA, and yes in order to avoid discrimination claims under Title VII. Note, under the FMLA, an eligible new father might take up to 12 total weeks of leave time for parenting and bonding or to care for a newborn with a serious health condition. If a mother received four weeks of paid leave, then a father should be treated the same and also may still have eight more weeks of unpaid time if not already used.
A relatively newly-hired and pregnant female employee requests two months of leave due to pregnancy-related medical complications. Her employer denies the request because it has a policy requiring employees to complete a 90-day probationary period to be eligible for medical leave. The employee had only been working for 65 days at the time of her request. There was no evidence that non-pregnant employees with less than 90 days of service were provided medical leave. Does the employer’s denial of the request violate the law?
Because the employer made the leave decision in accordance with its policy, and not because of the employee’s pregnancy, there is no evidence of pregnancy discrimination under Title VII and the PDA. Given that the newly-hired employee does not have FMLA rights, she cannot complain if the employer granted FMLA leave to a male, eligible employee. However, the answer may not be so clear under the ADA which applies not only to job applicants, but also to employees from day one. In that situation, considering the business reasons for the employer’s policy, information from the employee’s healthcare provider and the reasonable accommodation interactive process, together with employment law counsel advice, would be the wise course of action by the employer.
An employer offers pregnant employees up to ten weeks of partially-paid pregnancy-related medical leave for pregnancy and child birth as part of its general short-term disability insurance plan. The employer also offers new parents, whether male or female, six weeks of unpaid parental or bonding leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. Does the employer’s policy violate the laws?
No, as to Title VII and the PDA, since women and men both receive six weeks of parental leave, and women who give birth receive up to an additional ten weeks for recovery from pregnancy and child birth under the employer’s short-term disability (STD) insurance plan. Also, the STD benefit is available to males and females who need medical leave for various reasons.Under FMLA, the female employee is receiving four weeks more leave time than is required, but assuming FMLA rights apply to the male employee, he would be entitled to an additional six weeks of parenting or bonding time. The male employee has no impairments, so there are no ADA implications in this particular scenario.
Other key takeaways:
Carefully review an employer’s policies, especially as to medical issues, leave time and light-duty which could inadvertently impact PDA, FMLA and ADA issues relating to pregnancy and otherwise.
Generally speaking, there should be no need to reference pregnancy and maternity leave separate from other employer policies on leaves, though such references might come up under insurance policies related to short-term or even long-term medical leaves of absence.
A multi-level analysis under the Title VII/PDA, FMLA and ADA may need to be done, especially if an employer’s policies are more restrictive as applied to pregnancy or maternity leave and benefits even if the terminology is not specially referenced in the policies. In other words, adverse impact discrimination is sometimes alleged on facially neutral policies.
There are some state and local laws, mostly in the Northeast, which require more than the federal PDA, ADA and FMLA; therefore, be sure to check out each jurisdiction in which employees are located
Republished with permission. This article first appeared in Inside Counsel on April 21, 2015 .