September 30, 2010

Maternity Leave

You just found out your employee is pregnant.  Many employers hear this news with some measure of dread as they contemplate requests for months of maternity leave.  Some of that dread is fueled by confusion about exactly what the law requires.  Contacting an attorney before doing anything else could not only calm your worries, but also prevent a costly mistake.

When thinking about maternity leave, the first thing that comes to mind for most people is FMLA.  Indeed, FMLA does require maternity leave, but smaller employers are exempt, and not all employees qualify.  (For more information on FMLA, go here for a wealth of blogs and podcasts.)  But the analysis does not stop with FMLA. 

First and foremost, it is illegal to discriminate in employment based on pregnancy.  So, if you were thinking about taking care of this "problem," by simply firing your pregnant employee, think again.  (Specifically, think about whether you would want your wife, daughter, sister, friend, or yourself to get fired because of pregnancy.)  The laws against pregnancy discrimination apply to more employers and employees than FMLA.  In Washington, the Law Against Discrimination applies to employers with 8 or more employees.  Some cities, including Seattle, have a similar law which applies to employers of all sizes. 

Not discriminating against a pregnant employee obviously includes more than simply letting her keep her job.  In fact, it includes some maternity leave.  WAC 162-30-020, which discusses pregnancy discrimination under Washington law, says in part:

4) Leave policies.
(a) An employer shall provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth. Employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disabilities. For example:
(i) If an employer provides paid leave for sickness, or other temporary disabilities, the employer should provide paid leave for pregnancy related sickness or disabilities;
* * *
(iv) If the employer permits extensions of leave time (e.g., use of vacation or leave without pay) for sickness or other temporary disabilities, the employer should permit such extensions for pregnancy related sickness or disabilities.
(b) There may be circumstances when the application of the employer's general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men. One circumstance would be where the employer allows no leave for any sickness or other disability by any employee, or so little leave time that a pregnant woman must terminate employment. Because such a leave policy has a disparate impact on women, it is an unfair practice, unless the policy is justified by business necessity.
(c) An employer shall allow a woman to return to the same job, or a similar job of at least the same pay, if she has taken a leave of absence only for the actual period of disability relating to pregnancy or childbirth. Refusal to do so must be justified by adequate facts concerning business necessity.

Before denying a pregnant employee leave, even if you think it is justified by "business necessity," please consult with an attorney for advice about your specific situation.